Wendel Rosen Client Obtains Approval for Contentious SB 35 Project in Santa Cruz

After a protracted process, the Santa Cruz City Council approved the City’s first SB 35 application, a 140-unit (55 of which are affordable) mixed-use infill project, proposed by Novin Development Corporation, an experienced affordable housing developer. In spite of considerable opposition, and an initial vote by the Council to deny the project, the Council reconsidered its previous denial and ultimately found the project to be consistent with objective zoning standards, and thus in compliance with SB 35, by a 4 to 3 vote at its meeting on December 14, 2021. Staff issued its ministerial determination of consistency on December 16, 2021.

SB 35, contained at Government Code section 65913.4, provides for an expedited approval process for qualifying affordable housing projects without having to undergo California Environmental Quality Act (CEQA) review. SB 35 sets forth specific timeframes by which a local agency must determine a project’s consistency with “objective” zoning, subdivision and design standards. Such determination must be “ministerial,” i.e., non-discretionary. While a local agency is authorized to conduct a public oversight meeting to determine consistency with objective standards, it must do so in a way that does not chill or inhibit the ministerial determination of consistency. These ministerial determinations are normally made by local agency staff.

After Novin’s application was filed, the Council voted to appoint itself, rather than staff, as the arbiter of requests for density bonus concessions and waivers made in connection with an SB 35 application. Such post-application amendments modifying the manner in which SB 35 projects are processed are strictly prohibited by SB 35.

The Council, acting as the public oversight body, initially denied the project in October, clearly inserting itself into a discretionary and decision-making role. While such discretion is routinely exercised in traditional land use applications, the legislature enacted SB 35 in 2017 to ensure that such discretion on the part of local agencies was limited regarding projects processed under the statute. A month later, and following a flurry of objections from Wendel Rosen on behalf of Novin, as well as from pro-housing groups and the California Department of Housing and Community Development (HCD), the Council rescinded its earlier denial. Novin also submitted additional materials to address minor inconsistencies in the application, thereby garnering a staff recommendation that the Council find the application consistent with SB 35, leading to the project’s approval.

Wendel Rosen Land Use attorneys Patricia Curtin, Amara Morrison and Todd Williams represented the applicant.

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