FACT CHECK: On Sen. Nancy Skinner’s SB 330, Dick Platkin’s Article Was Right on Every Point

1. WHY THE RESPONSE IS WRONG IN CITING TO PARAGRAPH (h) (Senator Skinner’s Response to statement styled as Claim #1). In his CityWatch article on SB 330, Dick Platkin wrote that SB 330 “WOULD RETROACTIVELY VOID all restrictions on density, land use, zoning, and design standards implemented since January 1, 2018,” "would create parcel-by-parcel spot-zoning and up-zoning for the benefit of private developers,” and “establishes a parcel level minimum for future development.” Senator Skinner’s response does NOT deny any of these statements as they are clearly true.   

Section 66300 (b)(1)(A)[1] sets forth the general rule that “notwithstanding any other law,” its’ provisions override everything else, including all local ordinances, specific plans and zoning of a parcel, and prohibit any regulation that would reduce the use and zoning for that parcel “as in effect on January 1, 2018” except as set forth in (b)(1)(B)(ii).[2] That exception in turn only saves those ordinances that have been submitted to and approved by the state Department of Housing and Community Development (HCD).  

Senator Skinner’s office ignores the obvious, instead claiming that a response to Dick Platkin’s point lies in the provisions of Section 66300(h).[3] The reference to (h) is irrelevant and specious for several reasons.    

First, (h) is not among the exceptions listed in the general rule set forth in (b) and does not refer back to (b) or state that its provisions apply “notwithstanding” the general rule set forth in (b). As other provisions of SB 330 make clear, the bill knew how to provide for an exception to a general rule when that was the intended result. For example, the general rule set forth in section 66300(b)(1)(D) starts with “Except as provided in (E)”[4] and the exception in section 66300(b)(1)(E) starts with “Notwithstanding subparagraph (D)”.[5]    

Second, (h) does not include permission for adoption of any general or specific plan since it only speaks of parcel level zoning. Third, nothing in (h) would permit the enforcement of existing limitations in existing plans enacted since January 1, 2018 and in effect as of the passage of SB 330.  

There is, however, a more fundamental problem that the language of SB 330 and the issues with SB 330 cannot be fixed by a technical change of the “notwithstandings” and “excepts.” At its core, as Dick Platkin pointed out, SB 330 confers parcel by parcel entitlements that must be responded to by the city for approval in a matter of days or a few months at peril of liability to the developer.  As a matter of practicality and even possibility, SB 330 does not permit a city to adopt a general plan or incorporate any of the elements necessary for good planning without succumbing to the parcel by parcel entitlements conferred from Sacramento. SB 330’s top down upzoning in fact, as stated by Dick Platkin, “negates a city’s power to adopt a carefully prepared General Plan that lowers density in specific areas, even if it increases overall planned population and housing density.  Such a prohibited General Plan could also provide for future housing needs on transit and commercial corridors, with careful consideration for supporting public services and infrastructure.” The response from Senator Skinner’s office is a public relations and political smokescreen over the real breadth and dangers of SB 330. If enacted, SB 330 will create a “wild west” of parcel level zoning and construction that will dictate and constrict the city’s ability to implement a general plan or thoughtful community plans.[6]  

2. WHY THE DICK PLATKIN’S ARTICLE WAS RIGHT AS WRITTEN -- THAT SB 330 COULD AFFECT ALL OF THE LAWS IDENTIFIED IN HIS ARTICLE (Senator Skinner’s Response to statements styled as Claim #2-7). Dick Platkin wrote: "Senate Bill 330 establishes a parcel-level minimum for future development, retroactively to January 1, 2018, and prospectively to at least 2025.  It also maximizes profits from real estate speculation by permitting the densification and intensification of any parcel, while flouting a city’s legally adopted planning policies and ignoring the capacity of supportive infrastructure and public services. In Los Angeles this imposed State law could invalidate many new planning-related ordinances." 

Dick Platkin’s article then lists 6 housing related ordinances that have become effective since January 1, 2018 and that SB 330 therefore "could" affect, given its retroactive date. The response from Senator Skinner’s office mischaracterizes the statements made by the original article to set up a strawman from which to argue that SB 330 in fact “does not” affect any one of the laws identified.  Senator Skinner’s office does not and could not deny that any or all of these ordinances "could" be affected (see numbered claims 2-7 in the response from her office) nor does her office challenge the basic premise of the point – that SB 330 is a parcel-level minimum for future development that maximizes speculative profits and ignores infrastructure and service needs. The responses as to why this Los Angeles ordinance or that one is not or should not be affected have absolutely no bearing on Dick Platkin’s point that SB 330 “could” affect any of the listed examples, all of which became effective after January 1, 2018. The response makes no effort to address Mr. Platkin’s incontrovertible and noncontroversial point that SB 330 could invalidate any one or more of these laws by mere virtue of their effective date and, in fact, the original article was correct as written. 

3. BEYOND THE ORIGINAL ARTICLE: WHY SENATOR SKINNER’S CLAIM THAT SB 330 DOES NOT AFFECT SPECIFIC LAWS ENACTED SINCE JANUARY 1, 2018 IS WRONG IN ANY EVENT.  

AFFORDABLE HOUSING LINKAGE FEE. In addressing the first specific example -- the Affordable Housing Linkage Fee enacted in Los Angeles, Senator Skinner’s office simply responds that “On May 16, the Senate Appropriations Committee amended SB 330 so that it no longer impacts housing fee ordinances, including The Affordable Housing Linkage Fee.” Yes, the Senate Appropriations Committee amended SB 330 to remove an absolute cap freezing housing and linkage fees at 2018 levels. No, it is NOT true that SB 330, even as amended, “no longer impacts housing fee ordinances.”  

As other unamended sections of SB 330 make clear, only fees that are “essential” for the provision of services to the particular “housing development project” of the applicant are expressly permitted.[7] So there is no authority to impose fees to mitigate impact on the surrounding community or residents or to mitigate the cumulative effect of multiple projects on city services and infrastructure if not "essential" for the particular "housing development project." Nor does it seem apparent how or why the Affordable Housing Linkage Fee Ordinance enacted by the City of Los Angeles with an effective date of February 17, 2018 qualifies as a fee that is "essential to provide necessary public services and facilities to the housing development project." Developers can be expected to argue that the Affordable Housing Linkage Fee is not “essential to provide necessary public services and facilities” to their particular project and that therefore, it is invalid.  

OTHER IMPACT FEES. SB 330 also adds the reference to subdivision (o)[8], and that makes it apparent why removing the fee cap in the Appropriations Committee did not fix the problem with respect to impact and linkage fees in general (without reference to the Affordable Housing Linkage Fee). First, (o)(4) defines "ordinances, policies and standards" counterintuitively to include "development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions." That in turn means that the prohibition against “ordinances, policies and standards” in subdivision (o)(1) invalidates all fees, charges or other monetary exactions that come into effect at any time after the "preliminary" application for a project, other than "automatic annual adjustment(s) based on an independently published cost index that is referenced in the ordinance or resolution establishing the fee or other monetary exaction" as set forth in (o)(2) or enacted after January 1, 2025, as set forth in (o)(6). 

The Affordable Housing Linkage Fee, as a more recent ordinance, has a per square foot formula with indexed rates but, as set forth above, may not be permitted as a fee "essential" to providing services to the particular "housing development project" as required (see FN 7). On the other hand, city utilities and services that ARE essential to a particular project require a more detailed project assessment review to determine existing capacity and what infrastructure needs would be to support the project as proposed. Those fees are not determinable by formula or index at the present time and so would not be permitted under SB 330 as drafted EVEN IF "essential" for the particular "housing development project." Subdivision (o) therefore guts the ability of a city to quantify and assess the direct impact fees “essential” to providing services to the particular “housing development project” since the assessment of these fees require review of a project AS PROPOSED in the preliminary application, are not assessable per square foot or by an indexed rise in cost of living, are dependent upon capacity to and in a particular area and have to be assessed by project in the context of all existing and planned development in and around the affected parcel.  

SOUTH LA AND SOUTHEAST LA COMMUNITY PLANS. The response states that “SB 330 does not limit green prints or urban growth boundaries (pg. 45, line 37).”[9] Page 45, line 37 has nothing to do with these community plans and only permits “urban growth boundaries” established “by the electorate” on a date “on or before January 1, 2018.”[10] These community plans, of course, are post-January 1, 2018 (as pointed out by Dick Platkin) and in any event were not established by the electorate and do far more than establish green prints or urban growth boundaries. So the response from Senator Skinner’s office is irrelevant and does not address the issue. 

HOME SHARING ORDINANCE. The response again converts Mr. Platkin’s “could” to a blanket assertion that he never made in order to “refute” something he never said and then claims SB 330 “explicitly allows ordinances that regulate short-term rentals (pg. 44, line 18-23)” which is not a accurate description of what the cited section says.[11] Rather the section (see FN 11) addresses the circumstances under which SB 330 would allow a city or county to regulate commercial uses on land zoned for residential use. Except as set forth in that section, SB 330 invalidates even the ability of a city or county to restrict uses to residential uses and exclude commercial uses from residentially zoned areas. 

PERMANENT SUPPORTIVE HOUSING ORDINANCE. The response again converts Mr. Platkin’s “could” to a blanket assertion that he never made in order to “refute” something he never said with “This ordinance is in line with SB330 and creates more housing, so it would not be pre-empted.” This response is without citation to any particular section of SB 330 that would “save” the ordinance from presumptive invalidity as it was not in effect on January 1, 2018. Without more, the city would act at its peril in relying on this post-January 1, 2018 ordinance to deny an applicant’s proposed project. 

THE SMALL LOT SUBDIVISION CODE AMENDMENT AND POLICY STANDARD. The response again converts Mr. Platkin’s “could” to a blanket assertion that he never made in order to “refute” something he never said and then simply states that “SB 330 only requires that design standards be “objective.” So, it would not pre-empt this ordinance (pg. 43, line 29-30).”[12]  But that is beside the point as the ordinance enacted a number of zoning as well as design standards,[13]  and even all of the changes are “objective design standards,” they clearly are post-January 1, 2018 changes, and therefore subject to challenge under Section 66300(b) as “reducing the intensity” of land use on any particular residential parcel.  As stated in the original article, it appears that SB 330 could invalidate at least substantial parts, and possibly all, of this local ordinance. 

VALUE CAPTURE ORDINANCE.  The response again converts Mr. Platkin’s “could” to a blanket assertion that he never made in order to “refute” something he never said and then simply states: “SB 330 does not prevent locals from offering higher density in exchange for more low-income housing (pg. 45, line 11).”[14]  Perhaps, but since the value capture ordinance is a post-January 1, 2018 ordinance that imposes additional conditions and affordable housing components as the trade-off for higher density that existed prior to January 1, 2018, its validity and conditions could be open to challenge. 

4. CEQA. Dick Platkin’s article also states "Senate Bill 330 imposes undemocratic state controls that interfere with a city’s official responsibility to manage its own affairs.  This legislation could, therefore, nullify the rights of the electorate to pursue Initiatives or Referenda, particularly in charter cities like Los Angeles.  SB 330 expands a concerted real estate industry effort to exclude all local General Plan elements and their implementing land use ordinances, such as zoning, from the review and approval of building permits.  Instead, SB 330 would allow private developers to build whatever they wanted, wherever they wanted, independent of local General Plans, zones, and CEQA-based environmental reviews." 

The response from Senator Skinner’s office is: “SB 330, on p. 45, line 22-30, only removes requirements that a city council or county board of supervisors get voter approval before upzoning or increasing density.[15]  Also, multiple references in the bill state that nothing pre-empts CEQA (p. 45, line 14-15 and pg. 46, line 1-4 for example). Nothing in the bill changes CEQA EIR timelines. Local governments still have to approve and deny projects under the bill, according to their general plan and zoning rules, they just can’t downzone unless they upzone elsewhere, and they cannot prohibit or unfairly limit housing projects from coming forward for consideration.” 

This response does not quarrel with the actual point of the Article and simply references certain sections of SB 330 that pay lip service to a local authority's obligation to comply with CEQA and the empty promise of a CEQA savings clause.  The point of the article was that SB 330 effectively guts CEQA in all but name.  SB 330 shortens time frames, prohibits impact fees, subjects cities to liability suits from developers and otherwise makes it impossible as a practical matter for cities to perform meaningful CEQA and CEQA-based reviews before SB 330 requires the "by right" approval of a "housing development project." 

5. Dick Platkin’s article correctly states: “Senate Bill 330 shields slumlords and absentee owners from enforcement actions for code violations and nuisance abatement laws for seven years, even for fire, sanitation, and seismic safety laws.” 

Senator Skinner’s office responded with a political reframing of the question as "Fact": "SB 330 creates a process whereby code enforcement officers can establish a 7-year timeframe for buildings that are not compliant with building codes to come fully up to code so as to reduce the displacement of people from their homes, but it allows code enforcement officers to require health and life safety improvements first." 

Here are the facts: 

SB 330 adds Section 17980.12 to the Health and Safety Code (HSC). 

SB 330 gives the owner of an “occupied substandard building or unit”[16] the absolute right to request and obtain[17] a delay of code enforcement for up to seven years EXCEPT that the local authority MAY, but need not, act earlier with respect to "violations that impact health and safety."[18] 

The 7 years grace applies to any unit in which one or more persons reside (including apparently squatters) that an enforcement agency finds is in violation of any provision of law and any building standards. 

Those of us familiar with the tactics and practices of developers and capital seeking to empty a building of tenants or acquire residential property inexpensively are not fooled by Senator Skinner’s attempt to reframe the question.  SB 330 and its new section to the HSC authorizes and licenses the deliberate blight often inflicted by absentee owners and landlords trying to evict tenants or acquire a neighboring property inexpensively.  

6. Senator Skinner’s response did not take exception to any of the following statements as they appeared in the article and they, like the ones selectively and misleadingly challenged, are indisputably true: 

SB 330 in fact retroactively voids all restrictions on density, land use, zoning, and design standards implemented since January 1, 2018, eliminates historical preservation and design review boards and standards, eliminates all use restrictions in residential neighborhoods for up to 1/3rd of a project, imposes undemocratic and unconstitutional state controls on local jurisdictions and on the electorate, and reduces the amounts of new affordable housing by giving developers inclusionary housing credits for any relocation fees and the rights of existing tenants to refuse resettlement or reentry into a remodeled building. 

This is clearly an industry drafted bill that suffers from many of the same defects as SB 50 and both need to be stopped. 

DISCLAIMER: The views expressed in this article are those of the author in her individual capacity and do not represent the views of any other person or entity. This article is not intended, and may not be taken, as legal advice or services. The author is not acting as a lawyer, representative or lobbyist for any person or group.

(Hydee R. Feldstein is active in the P.I.C.O. Neighborhood Council and is an occasional CityWatch contributor. Any questions or comments can be directed to her at [email protected].) Prepped for CityWatch by Linda Abrams.

[1] SB 330, page 42 line 31 to page 43, line 10 “(b)(1) Notwithstanding any other law, with respect to land where housing is an allowable use on or after January 1, 2018, an affected county or an affected city shall not enact a development police, standard, or condition that would have any of the following effects: (A) Changing the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district below what was allowed under the land use designation and zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018, except as otherwise provided in clause (ii) of subparagraph (B).  For purposes of this subparagraph, “less intensive use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, or new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or anything that would lessen the intensity of housing, as defined in paragraph (1) of subdivision (f).”

[2] That exception, SB 330 page 43 lines 18-28, provides:

“(ii) The affected county or affected city, as applicable, shall not enforce a zoning ordinance imposing a moratorium or other similar restriction on or limitation of housing development until it has submitted the ordinance to, and received approval from, the department. The department shall approve a zoning ordinance submitted to it pursuant to this subparagraph only if it determines that the zoning ordinance satisfies the requirements of this subparagraph. If the department denies approval of a zoning ordinance imposing a moratorium or similar restriction or limitation on housing development as inconsistent with this subparagraph, that ordinance shall be deemed void.”

[3] SB 330, page 46, lines 9-14: “(h) This section does not prohibit an affected county or an affected city from changing a land use designation or zoning ordinance to a less intensive use if the city or county concurrently changes the development standards, policies, and conditions applicable to other parcels within the jurisdiction to ensure that there is no net loss in residential capacity.”

[4] Section 66300(b)(1)(D), SB 330, page 43 line 31 – page 44, line 2, provides the general rule that “Except as provided in subparagraph (E), establishing or implementing any provision:

(i) Limits the number of land use approvals or permits necessary for the approval and construction of housing that will be issued or allocated within all or a portion of the affected county or affected city, as applicable.

(ii) Acts as a cap on the number of housing units that can be approved or constructed either annually or for some other time period.

(iii) Limits the population of the affected county or affected city, as applicable.

[5] Section 66300(b)(1)(E), SB 330, page 44, lines 3-8, provides the exception to the general rule that “Notwithstanding subparagraph (D), an affected city or county may enforce a limit on the number of approvals or permits or a cap on the number of housing units that can be approved or constructed if the provision of law imposing the limit was approved by voters prior to January 1, 2005, and the affected city or county is located in a predominantly agricultural county.

[6] The infrastructure element of the Los Angeles general plan has not been updated since 1968 and the current schedule for updating the Los Angeles community and general plans will require at least six years to complete.  Yet the city, at its peril, must respond to a developer’s preliminary plan within an impossibly short timeframe.

[7] Section 65589.5(f)(3), SB 330 Page 17 lines 4-8, provides:  "Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter."

[8] Section 65589.5(o)(1), Page 24, lines 19-22, provides “(o) (1) Subject to paragraphs (2) and (6), a housing development project shall be subject only to the ordinances, policies, and standards adopted and in effect when a preliminary application was submitted pursuant to Section 65941.1.”

[9] Senator Skinner’s response sets up a strawman here claiming that the original article said SB 330 “would invalidate” these community plans.  That is NOT what the original article said and changing the “could” of Mr. Platkin’s words into a “would” for refutation amounts to a cheap trick, worthy of the “alternative facts” universe that prevails in Washington DC. 

[10] Section 66300(f)(2) begins at line 37 of page 45 and states: “This section shall not be construed to void a height limit, urban growth boundary or urban limit established by the electorate of an affected county or an affected city on or before January 1, 2018.”

[11] SB 330, page 44, lines 18-23 provide “(c) Notwithstanding subdivisions (b) and (e), an affected county or affected city may enact a development policy, standard, or condition to prohibit the commercial use of land that is designated for residential use, including, but not limited to, short-term occupancy of a residence, consistent with the authority conferred on the county or city by other law.”  I am not sure whether the Senator’s office just misread the text of her own bill or whether they never expected anyone to check.

[12] (C)  Imposing or enforcing design standards established on or after January 1, 2018, that are not objective design standards.

[13]For example, this ordinance explicitly exempted R2 (duplexes) in addition to the R1 (single family) zoning exemption.  The ordinance made a number of other changes that may or may not be “objective design standards” under the terms of SB 330 such as increased required lot width for a small lot subdivision from 16 feet to 18 feet, reduced lot coverage area from 80% to 75%, established setbacks from R1 adjacent parcels and made other changes.  See,  https://planning.lacity.org/ordinances/docs/smalllot/FAQs.pdf 

[14] The section does not prohibit a policy, standard or condition that “[a]llows greater density.”

[15] That is not all that section does but in the interests of space, the entire text is not included here but the reader should know that the cited section invalidates any requirement for voter approval or supermajority council approval for any denser housing use including any approval required to provide necessary services or infrastructure.

[16] SB 330, page 46, lines 19-24: “occupied substandard building or unit” means a building or unit in which one or more persons reside that an enforcement agency finds is in violation of any provision of this part, any building standards published in the California Building Standards Code, or any other rule or regulation adopted pursuant to this part.” 

[17] Section 17980.12(b)(3) the enforcement agency "shall" grant an application submitted pursuant to paragraph (2) and delay enforcement if it determines that correcting the violation or abating the nuisance is not necessary

to protect health and safety. (page 47, lines 1-4)

[18] SB 330, page 47, lines 5-6:  An enforcement agency may require violations or nuisances that impact health and safety to be corrected or abated earlier than seven years.