What Local Governments Must Do

How California's New Housing Laws Are Changing the Role of Cities and Counties

For most of California's history, cities and counties had enormous control over what housing could be built within their boundaries.

They adopted zoning.

They established development standards.

They decided which projects required public hearings.

They determined how applications were reviewed.

Local governments still have substantial land-use authority.

But over the last several years, California has placed increasingly clear limits on that authority when it comes to housing.

Cities and counties are now required to plan for their share of California's housing needs, maintain compliant Housing Elements, process certain projects ministerially, follow statutory deadlines, use objective standards where required, implement statewide ADU and SB 9 laws, and comply with a growing collection of state housing requirements.

And the State is increasingly willing to enforce those requirements.

For local governments, the message from Sacramento has become clear:

Housing law isn't optional.

Every City and County Must Plan for Housing

Every California city and county must maintain a Housing Element as part of its General Plan.

The Housing Element identifies how the jurisdiction will accommodate its share of regional housing needs across different income levels.

That includes planning for housing for:

Extremely low-income households.

Very low-income households.

Low-income households.

Moderate-income households.

Above-moderate-income households.

A Housing Element isn't simply a statement saying:

“We support housing.”

It must contain specific programs, implementation schedules, responsible agencies, and measurable objectives for addressing housing needs and removing barriers to development.

Cities Must Identify Realistic Sites for Housing

One of the most important parts of a Housing Element is the Sites Inventory.

Jurisdictions must identify land with adequate zoning and capacity to accommodate their assigned housing need.

For lower-income housing, the zoning and densities must realistically facilitate affordable development. State law provides density benchmarks that jurisdictions can use to demonstrate that identified sites are appropriately zoned.

This matters because putting housing units on a spreadsheet isn't enough.

The State increasingly expects jurisdictions to demonstrate that their housing plans can actually produce housing.

Housing Elements Must Be Implemented

Getting HCD to find a Housing Element substantially compliant is not the end of the process.

The jurisdiction then has to do what the Housing Element says it will do.

Programs may require cities or counties to:

Rezone property.

Amend development standards.

Remove governmental constraints.

Create housing incentives.

Streamline permit processing.

Update ordinances.

Facilitate affordable housing.

Preserve existing housing.

In other words:

A Housing Element is supposed to be an action plan, not a document that sits on a shelf.

Local Governments Must Follow State ADU Law

Cities and counties can adopt their own ADU ordinances.

But they don't get to rewrite California ADU law.

Local ordinances must comply with state requirements governing issues such as:

Ministerial approval.

Setbacks.

Parking.

Unit size.

Multifamily ADUs.

JADUs.

Application processing.

Other development standards.

HCD reviews local ADU ordinances for compliance with state law and has enforcement authority when local regulations conflict with California's requirements.

A local government may administer the permit.

But the State increasingly defines the minimum development rights the jurisdiction must recognize.

Local Governments Must Implement SB 9

The same principle applies to qualifying SB 9 projects.

SB 9 created statewide pathways for qualifying:

Two-unit residential developments.

Urban Lot Splits.

Local governments may impose qualifying objective zoning, subdivision, and design standards.

But those standards cannot be used to defeat the development rights created by state law.

The jurisdiction still reviews the project.

But it must review the project within the framework established by California law.

Objective Standards Are Becoming More Important

California has increasingly required qualifying housing projects to be evaluated under objective standards.

That means cities and counties need standards that can actually be applied consistently.

For example:

Instead of:

“The building must be compatible with neighborhood character.”

an objective standard might say:

“The building shall have a maximum height of 30 feet.”

One requires personal judgment.

The other can be measured.

This doesn't mean cities can't regulate design.

It means that when state law requires objective review, the rules need to be clear enough that an applicant can determine whether the project complies.

Ministerial Projects Must Be Treated as Ministerial

When California law says a qualifying housing project receives ministerial approval, the local government cannot simply recreate discretionary review under another name.

Ministerial review focuses on whether the project satisfies applicable objective requirements.

It generally doesn't involve deciding whether the city, county, Planning Commission, elected officials, or neighbors think the project should exist.

California now uses ministerial approval in numerous housing laws, including qualifying projects under:

ADU law.

SB 9.

SB 35/SB 423.

AB 2011.

SB 4.

Other state housing programs.

For local governments, this means understanding which approval process actually applies before processing the application.

Local Governments Have Deadlines

California law increasingly establishes deadlines for processing housing applications.

Under the Permit Streamlining Act, for example, local jurisdictions generally must determine in writing whether a covered development application is complete within 30 calendar days after receiving it.

If it is incomplete, the jurisdiction must identify the missing items.

Other housing laws establish their own review and decision timelines.

The exact deadline depends on the project and statute.

But the broader principle is important:

Housing applications cannot simply remain in review indefinitely because an agency hasn't gotten around to them.

Cities Can't Keep Moving the Goalposts

A predictable application process benefits everyone.

Applicants need to know:

What must be submitted.

Which standards apply.

Which agencies will review the project.

What corrections are required.

What happens next.

Local governments therefore need to examine not only what their regulations say, but how their permitting systems operate in practice.

A theoretically legal housing project isn't much of an opportunity if the approval process makes it functionally impossible to build.

Housing Element Compliance Has Real Consequences

A noncompliant Housing Element is no longer simply an administrative problem.

It can have serious land-use consequences.

Under SB 423, jurisdictions that have not adopted a Housing Element found substantially compliant with state law can be subject to streamlined ministerial approval for qualifying projects meeting the statute's requirements.

Housing Element noncompliance can also become relevant to Builder's Remedy, which we discussed earlier in this series.

And HCD can take enforcement action when jurisdictions fail to comply with state housing requirements.

For cities and counties, maintaining Housing Element compliance has become directly connected to maintaining local control over development decisions.

HCD Is Now an Enforcement Agency

The California Department of Housing and Community Development doesn't simply review Housing Elements.

Its Housing Accountability Unit enforces numerous state housing laws.

HCD's enforcement authority includes laws involving:

ADUs.

Housing Elements.

Housing Accountability.

Density Bonus.

SB 9.

Streamlined housing approvals.

Permit Streamlining Act requirements.

No Net Loss.

Fair housing.

Other state housing requirements.

HCD can provide technical assistance, investigate potential violations, and issue enforcement letters to jurisdictions.

This has fundamentally changed the relationship between state and local housing regulation.

Local Governments Still Have an Important Role

None of this means cities and counties have become irrelevant.

Far from it.

Local governments still understand things the State cannot possibly evaluate parcel by parcel.

They administer:

Building Codes.

Fire requirements.

Public infrastructure.

Streets.

Drainage.

Utilities.

Local environmental conditions.

Development standards.

Community planning.

They also have the responsibility to plan intelligently for growth.

The shift is not:

Local government no longer matters.

The shift is:

Local authority now operates within stronger statewide housing requirements.

Health and Safety Requirements Still Matter

State housing laws do not require jurisdictions to ignore legitimate health and safety concerns.

Projects still have to address applicable requirements involving:

Building safety.

Fire safety.

Structural standards.

Access.

Utilities.

Water.

Wastewater.

Environmental health.

What jurisdictions generally cannot do is use vague health-and-safety language as a substitute for legitimate objective requirements.

Rural Counties Have Additional Responsibilities

State housing law applies in rural jurisdictions too.

But rural counties frequently administer development where public infrastructure doesn't exist.

That means local agencies may need to evaluate issues involving:

Private wells.

Septic systems.

Fire access.

Wildland fire hazards.

Private roads.

Water storage.

Streams and wetlands.

Sensitive species and habitat.

Archaeological and cultural resources.

Agricultural lands.

Those are legitimate development issues.

The challenge is distinguishing between:

A real site constraint

and

a local requirement that improperly restricts housing that state law requires the jurisdiction to allow.

Rural counties have to do both jobs at once: implement California housing law while protecting public health, safety, environmental resources, and infrastructure.

Local Governments Should Make Permitting Easier to Understand

There is another side to all of this that doesn't require legislation.

Good permitting systems help applicants succeed.

Clear websites.

Accurate checklists.

Consistent correction letters.

Published timelines.

Pre-application meetings.

Online application tracking.

Staff members who understand current state housing laws.

Pre-approved plans where appropriate.

A good permitting department isn't one that approves everything.

It is one where applicants can understand what is required to get to yes.

Local Governments Can Also Create Incentives

California establishes minimum housing requirements.

Cities and counties can go further.

They can encourage housing through:

Additional density.

Reduced fees.

Faster processing.

Pre-approved ADU plans.

Flexible development standards.

Reduced parking.

Public land.

Infrastructure assistance.

Affordable-housing programs.

Local governments aren't limited to enforcing state mandates.

They can actively make housing easier to produce.

And communities that create predictable development environments may have an easier time attracting builders willing to invest there.

Why Builders, Homeowners, and Investors Should Care

Understanding what local governments must do gives applicants leverage.

Not leverage in the sense of fighting with Planning.

Leverage in the sense of understanding the rules.

If you know:

Your project is ministerial.

The agency has a processing deadline.

A particular subjective standard cannot be applied.

State law requires the ADU you're proposing.

Your SB 9 project qualifies.

The jurisdiction's Housing Element isn't compliant.

you can have a very different conversation with the agency.

Instead of:

“Will you let me do this?”

the conversation may become:

“Here is the state-law pathway under which this application is being submitted.”

That distinction matters.

Common Misconceptions

“Cities can ignore state housing laws because land use is locally controlled.”

False.

California law establishes numerous statewide housing requirements that cities and counties must implement.

“A compliant Housing Element is just paperwork.”

False.

Housing Element compliance affects zoning, housing programs, state enforcement, and eligibility for certain streamlined housing-development processes.

“Cities can't regulate ADUs anymore.”

False.

Cities and counties can apply standards authorized under state law. They simply cannot impose restrictions that conflict with California ADU requirements.

“Ministerial means the city can't review the project.”

False.

The agency still reviews the project for compliance with applicable objective requirements. Its discretion over whether the qualifying project should be approved is limited.

“State housing laws eliminate health and safety requirements.”

False.

Building, fire, infrastructure, environmental-health, and other legitimate requirements continue to apply.

Why This Matters

California's housing reforms represent a fundamental shift in the relationship between state and local government.

For decades, California largely told cities and counties:

Plan for housing.

Today, the State is increasingly saying:

Plan for it, zone for it, process it according to state law, approve qualifying projects, and demonstrate that your rules aren't preventing it from being built.

Local governments still have an enormous role in shaping their communities.

But housing decisions increasingly take place within a statewide legal framework designed to ensure that local regulations don't prevent California from meeting its housing needs.

The Bottom Line

California's new housing laws aren't simply giving homeowners and developers additional rights.

They're giving local governments additional responsibilities.

Cities and counties must:

Maintain compliant Housing Elements.

Implement the programs they promise.

Identify realistic housing sites.

Follow state ADU law.

Implement SB 9.

Apply objective standards when required.

Process ministerial projects ministerially.

Follow applicable processing deadlines.

Remove unlawful barriers to housing.

Respond to state oversight and enforcement.

For homeowners, builders, and investors, understanding those obligations can be just as important as understanding your own development rights.

Because sometimes the question isn't:

“Will the city approve my project?”

The better question is:

“What does California law require the city to approve?”

The End of This Series—But Not the End of the Changes

This article completes our overview of some of the most important changes reshaping California housing and development.

We've covered:

SB 79.

AB 130.

SB 131.

SB 1211.

SB 450.

Builder's Remedy.

Housing Element Enforcement.

Density Bonus.

Objective Design Standards.

Parking reform.

Permit streamlining.

SB 9 and Urban Lot Splits.

ADU updates.

Affordable Housing Incentives.

Ministerial Approvals.

Rural development.

Homeowners.

Builders.

Local governments.

The individual laws are important.

But the bigger story is what they collectively tell us:

California is changing how housing gets approved.

For anyone who owns, builds, develops, invests in, or regulates property in California, understanding those changes creates an enormous advantage.

And the laws will continue changing.

If you're evaluating a property or considering a residential development project, Buchanan Land Use Consulting can help determine which state and local laws apply, identify development opportunities and constraints, and navigate the permitting process.

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