City Council approved development standards for Senate Bill 9 (SB9) projects at their May 17 meeting. SB9 became effective on January 1. It is one of several housing bills adopted by the State Legislature in the past few years to address California’s housing shortage by increasing the housing stock. SB9 allows property owners in single family-zoned neighborhoods to split their lot and build up to two primary dwelling units on each lot by right (without a public hearing), if it meets the design standards created by the City.

Ministerial approval means approval by city staff based on objective standards, not the Planning Commission or City Council based on subjective standards.

The major innovation of SB9 is that it allows these projects to be approved by City staff as long as they meet the requirements, instead of being at the discretion of the Planning Commission or City Council. The reason for this is that Planning Commissions and City Councils have historically restricted housing construction in single family neighborhoods, which has contributed to California’s current housing shortage and affordability crisis.

The development standards approved by Council under SB9 must be “objective” rather than “subjective” and not subject to the opinions of an approving body. The standards Council approved include things like unit size (up to 800 square feet), height (10 feet with 4-foot setback, up to 22 feet with larger setback), stories (2 maximum), separation (minimum of 10 feet), lot coverage (40%), open space (200 square feet per bedroom), and landscaping (must install mature landscaping).

During Council discussion, Councilmember Ahmad Zahra expressed concern that the “mature landscaping” requirement would be overly restrictive.

Councilmember Jesus Silva asked staff how many SB9 projects had been built since the law took effect, as some members of the public were concerned about massive changes to their neighborhoods. It turns out that since January no projects have been built. There is one in the plan check phase. According to research from the Terner Center at UC Berkeley, development would be realistic in only about 5.4% of land now occupied by single-family houses.

SB9 has no affordability requirement. According to a staff consultant, “The intent is to create more affordable housing in the State. You do that by creating more units.”

Councilmember Nick Dunlap spoke against SB9 in general, saying, “I believe land use decisions should be local.”

Mayor Pro Tem Bruce Whitaker echoed these sentiments. “I have big concerns about SB9 and SB10, particularly in that it removes local control just in a very broad sweep. And it’s going to change the nature of neighborhoods quite severely over time.”

According to a staff report, “Concerns remain regarding the City’s ability to prohibit SB9 development on properties with the preservation zone designation due to a recent interpretation of ‘historic structures and districts’ by the State Attorney General’s (AG) Office. Specifically, language within SB9 intends to protect ‘historic structures and districts,’ but remains silent on ‘preservation zones.’ The AG has made a narrow interpretation of the definition of a ‘historic district’ that would not allow Fullerton to apply SB9 to Fullerton’s preservation zones. To assist in allowing the exemption of the preservation zones from SB9 development, the Commission recommended that City Council direct staff to begin work on updating the historic preservation sections of the Zoning Code and include language that would preserve Fullerton’s historic resources.”

Zahra said that the discussion before City Council is not approving or disapproving SB9 (which has already passed), but “is about creating an objective law in our city that meets the new State laws…We have a city that we all love, we do need housing, this is the State’s response, and our response is to look at our City and how we can accommodate for that the best way we can to protect most importantly our historic neighborhoods.” Zahra added that SB9 does not require anyone to build. It gives property owners the choice to build.

Silva said, “SB9 was passed because a lot of local cities are not able to help with the shortage of housing that we have in California…Some of my kids moved out of California because they couldn’t afford to live here, so I’m supportive of SB9 and I’m supportive of the work that staff and planning has done.”

Fees for SB9 projects are:

-Urban Lot Split – $3,920.20 in Fiscal Year (FY) 2021-22 ($6,191.99 in FY 2022-23)

-Two-Lot Project – $1,215.36 in FY 2021-22 ($1,215.36 in FY 2022-23)

Council voted 4-1 (Whitaker “no”) to approve the new SB9 standards.

On a separate but related note, Council voted to agendize discussion of an inclusionary housing ordinance (requiring a level of affordability for projects large and small) for a future meeting.