Background Information

California Senate Bill 35 (SB 35), Affordable Housing: Streamlined Approval Process, was signed by Governor Jerry Brown on September 27, 2017, and became effective on January 1, 2018. Government Code Section 65913.4 specifically allows a development proponent to submit an application for a streamlined, ministerial (no public hearing) approval process when the proposed development is eligible and meets specific objective standards. Please see the SB 35 Supplemental Application for the detailed project eligibility list. The project is required to comply with all of the items identified on the list to qualify for SB 35 streamlined processing. SB 35 projects are not permitted in the Coastal Zone.

What is the process for streamlined approval?

Prior to accepting an application for SB 35 approval, the City must notify relevant California Native American tribes about the proposed development. If there is no response to the notification of intent or there is an agreement reached in a scoping consultation and the project application is deemed complete and eligible for SB 35 review, the project is eligible for SB 35 (ministerial) approval. If there is no agreement reached, a project is not eligible for SB 35 approval. Provided that the notification and scoping session result in either an agreement or no response, SB 35 timelines shall commence provided a site permit is submitted.

Projects that elect to take advantage of streamlining stipulated in SB 35 must submit a Planning Application and an SB 35 Supplemental Application demonstrating the project’s eligibility. These can be submitted to the Land Development Division.

CEQA review is not required for SB 35 eligible projects because they are subject to a ministerial approval process. The site or building permit will not be subject to any applicable neighborhood notice requirements in the Encinitas Municipal Code, and Development Services will not accept discretionary review applications for these projects because they are subject to a ministerial approval process.

SB 35 includes timelines for streamlined review. Planning staff must determine if a project is eligible for streamlining within 60 days of application submittal for projects of 150 or fewer units, and 90 days for projects containing more than 150 units. If the Department provides written comments to the applicant detailing how a project is not SB 35 eligible as proposed, or requests additional information to make such a determination, then the 60- or 90-day timeline will restart upon submittal of a revised development application in response to that written notice.

Any design review or public oversight must be completed in 90 days for 150 or fewer units and 180 days for projects with more than 150 units, measured from the date of the SB 35 application submittal. The Development Services Director may decide, on a case by case basis, to schedule a design review hearing for an SB 35 project at the Planning Commission.

What are objective standards and how do I apply them?

SB 35 states that a project must be consistent with objective zoning, general plan, subdivision, and design standards, which are standards that involve no personal or subjective judgment by a public official. They must be uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant and the public official prior to submittal. Therefore, projects that elect to take advantage of streamlining stipulated in SB 35 are only subject to objective standards and will not be required to follow subjective or discretionary processes.

SB 35 Streamlined Approval Process

This is a summary of the affordable housing streamlined approval process for projects that meet the eligibility criteria according to California Government Code §65913.4, and comply with the objective standards established in Title 30, Zoning, of the Encinitas Municipal Code, and the City of Encinitas Design Standards and Guidelines.

Step 1: Confirm the Project’s Eligibility

The first step is to confirm that the project meets the eligibility criteria. Read the eligibility checklist in the Supplemental Application to confirm the project is eligible.

Step 2: Submit Notice of Intent

Once you have confirmed that the project meets all eligibility criteria, submit a Notice of Intent in the form of the SB 35 Supplemental Application.

Step 3: Tribal Consultation (City)

Upon receipt of a Notice of Intent, the City will engage in a scoping consultation with any California Native American tribe that is affiliated with the geographic area. The timeline is as follows:

1. Notice. Within 30 days, the City will provide formal notice for each Tribe.
2. Acceptance. Each Tribe has 30 days to accept the invitation to engage in consultation.
3. Consultation. The City initiates consultation within 30 days of acceptance of the invitation.

Step 4: Submit a Complete Application

Once the Tribal Consultation has been concluded, and the project meets the eligibility criteria, you will submit the following:

1. Copy of the SB 35 Supplemental Application.
2. City of Encinitas Planning Application.
3. State Density Bonus Application Supplemental (if applicable).
4. Architectural Plans.

Step 5: Ministerial Review (City)

The timelines for ministerial review are as follows:

1. Application Review. Planning staff will determine if the application is complete, and if the project conflicts with any objective zoning and design review standards, within 60 days for projects of 150 or fewer units, and 90 days for projects of more than 150 units.
2. Design Review. After the application is determined to be complete, a noticed public hearing will be scheduled at the Planning Commission. Review shall be objective and strictly focused on assessing compliance with applicable criteria and objective design review standards.
3. Action on the Application. Action on the application including ministerial design review must be completed in 90 days for 150 or fewer units and 180 days for projects with more than 150 units, measured from the date of a complete application submittal.
4. Expiration. A decision to approve the project will expire after three years. A denial of a qualifying streamlined housing project may be appealed by the applicant to the City Council.

Step 6: Submit a Building Permit

A building permit must be issued prior to the three-year approval expiration date. A project may receive a one-time, one-year time extension if the applicant shows significant progress.

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