THIRD READING  

Bill No: AB 3234

Author: Ting (D)

Amended: 8/24/20 in Assembly

Vote: 21

ASSEMBLY FLOOR: 43-26, 8/24/20 - See last page for vote

SUBJECT: Public Safety

SOURCE: Author

DIGEST:

This bill creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years of age and who have served a minimum of 20 years.

ANALYSIS:

Existing law:

1. Permits pretrial and post-trial diversion programs. (Penal Code Section 1001.)
2. Establishes the elderly parole, allowing for the review of parole suitability for any inmate who is 60 years of age or older and has served a minimum of 25 years of continuous incarceration. Section 3055)

This bill:

1. Creates a court-initiated misdemeanor diversion program. A superior court judge would be authorized to divert a misdemeanor defendant over the objection of the prosecution. Unlike existing general misdemeanor diversion, this bill has no statutory requirements for the defendant to satisfy in order to be eligible nor would any misdemeanors be statutorily excluded. Whether or not to divert a misdemeanor defendant would be in the trial court's discretion.
2. Provides that the following misdemeanors cannot be diverted: any offense for which the defendant would be required to register as a sex offender; domestic violence; or, stalking.
3. Provides that a person may be eligible for parole at the age of 50 years if they have served a minimum of 20 years of continuous incarceration.

Comments

According to the author:

AB3234 provides judges with the discretion to provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.

AB 3234 also changes the age for elderly parole eligibility from 60 to 50 and time served from 25 to 20 years. This bill only allows for the opportunity to go to the parole board—it is not automatic release. The bill excludes strikers and estimates from Board of Parole Hearings show that of the total prison population, fewer than 240 individuals would have the opportunity to have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The current Covid-19 pandemic requires thoughtful and urgent measures to reduce the risk of harm inside the state's prisons. This provides a deliberative process with safeguards for consideration for release for this high risk population

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/29/20)

California Public Defenders Association

Californians for Safety and Justice

Ella Baker Center for Human Rights

Initiate Justice

Smart Justice California

Uncommon Law

OPPOSITION: (Verified 8/29/20)

California District Attorneys Association

California Police Chiefs Association

Crime Victims United of California

Judicial Council

ASSEMBLY FLOOR: 43-26, 8/24/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Chiu, Chu, Daly, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wood, Rendon

NOES: Bigelow, Boerner Horvath, Brough, Cervantes, Chen, Choi, Cooley, Cooper, Cunningham, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Lackey, Maienschein, Mathis, Mayes, Muratsuchi, Patterson, Petrie-Norris, Ramos, Salas, Smith, Voepel

NO VOTE RECORDED: Chau, Eggman, Frazier, Gray, Irwin, Obernolte, Quirk-Silva, Rodriguez, Waldron, Wicks

Prepared by: Mary Kennedy / PUB. S. /

8/31/20 0:29:06

**** END ****

(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 3234

Author:(Ting)

As Amended Ver:August 24, 2020

Majority vote

SUMMARY:

Creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years of age and who have served a minimum of 20 years.

Major Provisions

1. Authorizes a superior court judge to offer diversion to a person charged with a misdemeanor over the objection of a prosecuting attorney, except that a defendant may not be offered diversion for any of the following currently charged offenses:
   1. Any offense for which a person, if convicted, would be required to register as a sex offender;
   2. A domestic violence offense – i.e., the willful infliction of corporal injury resulting in a traumatic condition upon a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, former cohabitant, fiancé or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship;
   3. A domestic battery offense – i.e., battery against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship; and,
   4. Stalking.
2. Provides that a judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant's specific situation.
3. States that if the defendant has complied with the imposed terms and conditions, at the end of the diversion period, the judge shall dismiss the action against the defendant.
4. Requires the court to provide the defendant notice and hold a hearing to determine whether criminal proceedings should be reinstated if it appears to the court that the defendant is not complying with the terms and conditions of diversion. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
5. Provides that in order for a defendant who is diverted pursuant to this provision to have their action dismissed, the defendant must complete all conditions ordered by the court, make full restitution, and comply with any court-ordered protective order, stay-away order, or order prohibiting firearm possession. However, a defendant's inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
6. States that upon successful completion of the court-ordered terms, conditions, or programs of diversion, the arrest upon which diversion was imposed shall be deemed to never have occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested.
7. Prohibits, without the defendant's consent, using a record pertaining to an arrest resulting in successful completion of diversion in any way that could result in the denial of any employment, benefit, license, or certificate.
8. Requires that the defendant be advised that, regardless of their successful completion of diversion, the arrest on which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding the foregoing provisions, the defendant is not relieved of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined.
9. Lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years of age instead of 60 years of age and who have served a minimum of 20 years of continuous incarceration instead of a minimum of 25 years of continuous incarceration.
10. Provides that by December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, on the effective date of the bill that added this subdivision, are or will be entitled to have their parole suitability considered at an elderly parole hearing before January 1, 2023.

COMMENTS:

Diversion as Compared to Deferred Entry of Judgment

Existing law permits pretrial and posttrial diversion programs. (Penal Code Section 1001.) The latter is typically referred to as deferred entry of judgment (DEJ).

Pre-trial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. The defendant must successfully complete a program or other conditions imposed by the court. If a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that they have never been arrested or charged for the diverted offense.

With DEJ, a defendant must enter a guilty plea and entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced.

This bill contemplates a pre-trial diversion program. Accordingly, the proposed Committee amendments replace language that would apply to a deferred-entry of judgment program and replace it with language applicable to a diversion program.

General Misdemeanor Diversion

There are multiple diversion programs under existing law, including one for misdemeanors generally. (Penal Code Section 1001 et. seq.) The Legislature has authorized the prosecution to approve a local misdemeanor diversion program. (See Penal Code Sections 1001-1001.9, 1001.50-1001.55) No program can continue without the approval of the prosecution. And no person can be diverted under a diversion program unless it has been approved by the prosecution. (Penal Code Sections 1001.2(b), 1001.50(b); People v. Marroquin (2017) 15 Cal.App.5th Supplement 1, 37 ["the Legislature has not conferred 'a general grant of authority to trial courts to grant diversion to a defendant, outside a diversion program mandated by the state or by local government, and over the objection of the prosecuting attorney … .' [citation omitted].) However, the prosecution is not authorized to determine whether a particular defendant shall be diverted. (Penal Code Section 1001.2)

Existing misdemeanor diversion has a number of exclusions. (Penal Code Section 1001.51(c)) Misdemeanor offenses ineligible for diversion include those which require registration as a sex offender and involve use of force other than simple assault and battery Also ineligible are offenses for which probation is prohibited and for which incarceration is mandatory, as well as certain Vehicle Code offenses. (Ibid.) There are also requirements in order to be eligible, including that the defendant has not been granted misdemeanor diversion within five years of the current charges filed, the defendant has never been convicted of a felony or convicted of a misdemeanor within the preceding five years, and the defendant has never had their probation or parole revoked without thereafter successfully completing it. (Penal Code Section 1001.51(a))

This bill would create a court-initiated misdemeanor diversion program. A superior court judge would be authorized to divert a misdemeanor defendant over the objection of the prosecution. Unlike existing general misdemeanor diversion, this bill would have no statutory requirements for the defendant to satisfy in order to be eligible nor would any misdemeanors be statutorily excluded. Whether or not to divert a misdemeanor defendant would be in the trial court's discretion. However, judicial discretion is not without limits. "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) A trial court abuses its discretion when it exceeds the bounds of reason, all of the circumstances before it being considered. (Id., at p. 194.)

Elderly Parole Program

In response to the Three-judge Court order to reduce the prison population (Coleman v. Brown (ED Cal. Feb. 10, 2014, No. 2:90-cv-0520 LKK DAD (PC), No. C01-1351 THE) 2014 U.S. Dist. Lexis 86855), the California Department of Corrections and Rehabilitation "implement[ed] a new parole process whereby inmates who are 60 years of age or older and have served a minimum of twenty-five years of their sentence [are] referred to the Board of Parole Hearings (BPH) to determine suitability for parole." The program does not apply to inmates who are sentenced to death or life without the possibility of parole. (https://www.cdcr.ca.gov/bph/elderly-parole-hearings-overview/ [as of 8/4/2020].)

In 2017, the Legislature passed AB 1448 (Weber), Chapter 676, which established the Elderly Parole Program to be administered by the BPH. (Penal Code Section 3055) Under the Elderly Parole Program, inmates who are 60 years of age or older and have served 25 years of continuous incarceration on their current sentence are to have their parole suitability considered. (Penal Code Section 3055(a)) This program does not apply to a prisoner who has been sentenced under the "Three Strikes" Law, who has been sentenced to life in prison without the possibility of parole or death, or who has been convicted of first-degree murder of a peace officer, as specified. (Penal Code Section 3055(g) and (h)) When considering release of an inmate, the BPH must "give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate's risk for future violence." (Penal Code Section 3055(c))

This bill would lower the minimum age limitation for the Elderly Parole Program under Penal Code section 3055 to inmates who are 50 years of age instead of 60 years of age and who have served a minimum of 20 years of their sentence instead of a minimum of 25 years of their sentence. This bill would also require that by December 31, 2022, the BPH complete all elderly parole hearings for individuals who, on the effective date of this bill, are or will be entitled to have their parole suitability considered before January 1, 2023.

According to the Author:

"AB 3234 provides judges with the discretion to provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.

"AB 3234 also changes the age for elderly parole eligibility from 60 to 50 and time served from 25 to 20 years. This bill only allows for the opportunity to go to the parole board—it is not automatic release. The bill excludes strikers and estimates from Board of Parole Hearings show that of the total prison population, fewer than 240 individuals would have the opportunity to have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The current Covid-19 pandemic requires thoughtful and urgent measures to reduce the risk of harm inside the state's prisons. This provides a deliberative process with safeguards for consideration for release for this high risk population."

Arguments in Support:

According to Californians for Safety and Justice, "While reforming elderly parole in this manner always makes sense, there has never been a more pressing time to expand and expedite elderly parole: COVID-19 is ripping through our prisons, with elderly people being the most vulnerable to serious medical consequences, including death. The virus also increases the need for space in our prisons to effectively quarantine, making every safe release an important step toward containing and mitigating the virus. Given the evidence of significant costsavings, positive public safety outcomes, and the increased risk of serious illness or even death due to the pandemic, these commonsense reforms to elder parole are not only critical but will result in saving a number of lives.

…

"Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and often increase recidivism and exacerbate the underlying causes of crime. Judge-granted diversion is a tool that can reduce the direct and collateral consequences of mass incarceration and prosecution and promote racial justice in our criminal legal system. AB 3234 also decreases the taxpayer cost of traditional criminal case proceedings, while increasing accountability through rigorous rehabilitative programming, encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism."

Arguments in Opposition:

According to the California District Attorneys Association, "[T]he key provisions of this bill have been lifted from AB 88, the Public Safety Trailer bill which CDAA and Cal Chiefs opposed – and which was pulled from the floor before it could be voted on - in large measure because of the provisions that are now the thrust of AB 3234.

"The bill is based on an LA County pilot program, AB 2124 from 2014, which expired in 2018. That pilot program applied generally to first time offenders and included multiple exclusions – including sex crimes, DUIs, weapons charges, crimes against elders and minors, including possession of child pornography and annoying or molesting a child, weapons charges, defendants who had prior diversion and defendants with prior violence within the last 10 years.

[…]

"The bill also includes language from the rejected budget trailer bill that changes the Elderly Parole Program. Currently, the bill authorizes a review of the parole suitability of inmates who are 60 years of age or older and who have served a minimum of 25 years of continuous incarceration. Under the terms of this proposal elderly would now be considered 50 years of age and available to an inmate who had served 20 years of continuous incarceration.

"If given a little more time than has been available under the dramatically accelerated hearing of this bill, CDAA could cite hundreds of examples of dangerous and violent criminals who committed heinous crimes after age 50."

FISCAL COMMENTS:

None.

VOTES:

ASM LOCAL GOVERNMENT: 8-0-0

YES: Aguiar-Curry, Lackey, Bloom, Boerner Horvath, Ramos, Luz Rivas, Robert Rivas, Voepel

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

ASSEMBLY FLOOR: 40-18-21

YES: Aguiar-Curry, Arambula, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wood, Rendon

NO: Bigelow, Brough, Chen, Choi, Cunningham, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Lackey, Mathis, Mayes, Obernolte, Patterson, Petrie-Norris, Quirk-Silva

ABS, ABST OR NV: Bauer-Kahan, Boerner Horvath, Cervantes, Chu, Cooley, Cooper, Daly, Frazier, Gabriel, Gray, Grayson, Irwin, Low, Maienschein, Muratsuchi, Ramos, Salas, Smith, Voepel, Waldron, Wicks

ASM PUBLIC SAFETY: 5-3-0

YES: Jones-Sawyer, Kamlager, Quirk, Santiago, Mark Stone

NO: Lackey, Bauer-Kahan, Diep

UPDATED:

VERSION: August 24, 2020

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0003312

ASSEMBLY THIRD READING

ATR Bill Id:AB 3234

Author:(Ting)

As Amended Ver:August 3, 2020

Majority vote

SUMMARY:

Creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years of age and who have served a minimum of 20 years.

Major Provisions

1. Authorizes a superior court judge to offer diversion to a person charged with a misdemeanor over the objection of a prosecuting attorney.
2. Provides that a judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant's specific situation.
3. States that if the defendant has complied with the imposed terms and conditions, at the end of the diversion period, the judge shall dismiss the action against the defendant.
4. Requires the court to provide the defendant notice and hold a hearing to determine whether criminal proceedings should be reinstated if it appears to the court that the defendant is not complying with the terms and conditions of diversion. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
5. Provides that in order for a defendant who is diverted pursuant to this provision to have their action dismissed, the defendant must complete all conditions ordered by the court, make full restitution, and comply with any court-ordered protective order, stay-away order, or order prohibiting firearm possession. However, a defendant's inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
6. States that upon successful completion of the court-ordered terms, conditions, or programs of diversion, the arrest upon which diversion was imposed shall be deemed to never have occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested.
7. Prohibits, without the defendant's consent, using a record pertaining to an arrest resulting in successful completion of diversion in any way that could result in the denial of any employment, benefit, license, or certificate.
8. Requires that the defendant be advised that, regardless of their successful completion of diversion, the arrest on which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding the foregoing provisions, the defendant is not relieved of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined.
9. Lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years of age instead of 60 years of age and who have served a minimum of 20 years of continuous incarceration instead of a minimum of 25 years of continuous incarceration.
10. Provides that by December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, on the effective date of the bill that added this subdivision, are or will be entitled to have their parole suitability considered at an elderly parole hearing before January 1, 2023.

COMMENTS:

Diversion as Compared to Deferred Entry of Judgment

Existing law permits pretrial and posttrial diversion programs. (Penal Code, Section 1001.) The latter is typically referred to as deferred entry of judgment (DEJ).

Pre-trial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. The defendant must successfully complete a program or other conditions imposed by the court. If a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that they have never been arrested or charged for the diverted offense.

With DEJ, a defendant must enter a guilty plea and entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced.

This bill contemplates a pre-trial diversion program. Accordingly, the proposed Committee amendments replace language that would apply to a deferred-entry of judgment program and replace it with language applicable to a diversion program.

General Misdemeanor Diversion

There are multiple diversion programs under existing law, including one for misdemeanors generally. (Penal Code, Section 1001 et. seq.) The Legislature has authorized the prosecution to approve a local misdemeanor diversion program. (See Penal Code, Sections 1001-1001.9, 1001.50-1001.55.) No program can continue without the approval of the prosecution. And no person can be diverted under a diversion program unless it has been approved by the prosecution. (Pen. Code, Sections 1001.2, subdivision (b), 1001.50, subdivision (b); People v. Marroquin (2017) 15 Cal.App.5th Supplement 1, 37 ["the Legislature has not conferred 'a general grant of authority to trial courts to grant diversion to a defendant, outside a diversion program mandated by the state or by local government, and over the objection of the prosecuting attorney … .' [citation omitted].) However, the prosecution is not authorized to determine whether a particular defendant shall be diverted. (Penal Code, Section 1001.2.)

Existing misdemeanor diversion has a number of exclusions. (Pen. Code, Section 1001.51, subdivision (c).) Misdemeanor offenses ineligible for diversion include those which require registration as a sex offender and involve use of force other than simple assault and battery Also ineligible are offenses for which probation is prohibited and for which incarceration is mandatory, as well as certain Vehicle Code offenses. (Ibid.) There are also requirements in order to be eligible, including that the defendant has not been granted misdemeanor diversion within five years of the current charges filed, the defendant has never been convicted of a felony or convicted of a misdemeanor within the preceding five years, and the defendant has never had their probation or parole revoked without thereafter successfully completing it. (Penal Code, Section 1001.51, subdivision (a).)

This bill would create a court-initiated misdemeanor diversion program. A superior court judge would be authorized to divert a misdemeanor defendant over the objection of the prosecution. Unlike existing general misdemeanor diversion, this bill would have no statutory requirements for the defendant to satisfy in order to be eligible nor would any misdemeanors be statutorily excluded. Whether or not to divert a misdemeanor defendant would be in the trial court's discretion. However, judicial discretion is not without limits. "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) A trial court abuses its discretion when it exceeds the bounds of reason, all of the circumstances before it being considered. (Id., at p. 194.)

Elderly Parole Program

In response to the Three-judge Court order to reduce the prison population (Coleman v. Brown (ED Cal. Feb. 10, 2014, No. 2:90-cv-0520 LKK DAD (PC), No. C01-1351 THE) 2014 U.S. Dist. Lexis 86855), the California Department of Corrections and Rehabilitation "implement[ed] a new parole process whereby inmates who are 60 years of age or older and have served a minimum of twenty-five years of their sentence [are] referred to the Board of Parole Hearings (BPH) to determine suitability for parole." The program does not apply to inmates who are sentenced to death or life without the possibility of parole. (https://www.cdcr.ca.gov/bph/elderly-parole-hearings-overview/ [as of 8/4/2020].)

In 2017, the Legislature passed AB 1448 (Weber), which established the Elderly Parole Program to be administered by the BPH. (Penal Code, Section 3055.) Under the Elderly Parole Program, inmates who are 60 years of age or older and have served 25 years of continuous incarceration on their current sentence are to have their parole suitability considered. (Penal Code, Section 3055, subdivision. (a).) This program does not apply to a prisoner who has been sentenced under the "Three Strikes" Law, who has been sentenced to life in prison without the possibility of parole or death, or who has been convicted of first-degree murder of a peace officer, as specified. (Penal Code, Section 3055, subdivision. (g) & (h).) When considering release of an inmate, the BPH must "give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate's risk for future violence." (Penal Code, Section 3055, subdivision. (c).)

This bill would lower the minimum age limitation for the Elderly Parole Program under Penal Code section 3055 to inmates who are 50 years of age instead of 60 years of age and who have served a minimum of 20 years of their sentence instead of a minimum of 25 years of their sentence. This bill would also require that by December 31, 2022, the BPH complete all elderly parole hearings for individuals who, on the effective date of this bill, are or will be entitled to have their parole suitability considered before January 1, 2023.

According to the Author:

"AB 3234 provides judges with the discretion to provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.

"AB 3234 also changes the age for elderly parole eligibility from 60 to 50 and time served from 25 to 20 years. This bill only allows for the opportunity to go to the parole board—it is not automatic release. The bill excludes strikers and estimates from Board of Parole Hearings show that of the total prison population, fewer than 240 individuals would have the opportunity to have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The current Covid-19 pandemic requires thoughtful and urgent measures to reduce the risk of harm inside the state's prisons. This provides a deliberative process with safeguards for consideration for release for this high risk population."

Arguments in Support:

According to Californians for Safety and Justice, "While reforming elderly parole in this manner always makes sense, there has never been a more pressing time to expand and expedite elderly parole: COVID-19 is ripping through our prisons, with elderly people being the most vulnerable to serious medical consequences, including death. The virus also increases the need for space in our prisons to effectively quarantine, making every safe release an important step toward containing and mitigating the virus. Given the evidence of significant costsavings, positive public safety outcomes, and the increased risk of serious illness or even death due to the pandemic, these commonsense reforms to elder parole are not only critical but will result in saving a number of lives.

…

"Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and often increase recidivism and exacerbate the underlying causes of crime. Judge-granted diversion is a tool that can reduce the direct and collateral consequences of mass incarceration and prosecution and promote racial justice in our criminal legal system. AB 3234 also decreases the taxpayer cost of traditional criminal case proceedings, while increasing accountability through rigorous rehabilitative programming, encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism."

Arguments in Opposition:

According to the California District Attorneys Association, "[T]he key provisions of this bill have been lifted from AB 88, the Public Safety Trailer bill which CDAA and Cal Chiefs opposed – and which was pulled from the floor before it could be voted on - in large measure because of the provisions that are now the thrust of AB 3234.

"The bill is based on an LA County pilot program, AB 2124 from 2014, which expired in 2018. That pilot program applied generally to first time offenders and included multiple exclusions – including sex crimes, DUIs, weapons charges, crimes against elders and minors, including possession of child pornography and annoying or molesting a child, weapons charges, defendants who had prior diversion and defendants with prior violence within the last 10 years.

…

"The bill also includes language from the rejected budget trailer bill that changes the Elderly Parole Program. Currently, the bill authorizes a review of the parole suitability of inmates who are 60 years of age or older and who have served a minimum of 25 years of continuous incarceration. Under the terms of this proposal elderly would now be considered 50 years of age and available to an inmate who had served 20 years of continuous incarceration.

"If given a little more time than has been available under the dramatically accelerated hearing of this bill, CDAA could cite hundreds of examples of dangerous and violent criminals who committed heinous crimes after age 50."

FISCAL COMMENTS:

Unknown.

VOTES:

ASM LOCAL GOVERNMENT: Vote not relevant

YES:

ASM APPROPRIATIONS: Vote not relevant

YES:

ASSEMBLY FLOOR: Vote not relevant

YES:

NO:

ABS, ABST OR NV:

ASM PUBLIC SAFETY: 5-3-0

YES: Jones-Sawyer, Kamlager, Quirk, Santiago, Mark Stone

NO: Lackey, Bauer-Kahan, Diep

UPDATED:

VERSION: August 3, 2020

CONSULTANT: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0003172

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 3234

Author:(Gloria) – As Amended Ver:May 18, 2020

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill authorizes cities and counties to adopt small lot ordinances, exempt from CEQA, to create small lot subdivisions on infill sites less than five acres in size that meet certain requirements. This bill also aligns Subdivision Map Act (SMA) approval of tentative and parcel maps for housing development projects with provisions of the Housing Accountability Act.

FISCAL EFFECT:

No state costs. Certain provisions of this bill are optional for cities and counties and are therefore, not reimbursable by the state. Other provisions may result in state mandated local costs, but these costs are not reimbursable by the state because local agencies have the authority to levy fees to cover these costs.

COMMENTS:

1. Purpose. This bill seeks to encourage development of small lot homes by allowing cities and counties to adopt local ordinances, exempt from CEQA, that streamline the subdivision process for small lot subdivisions and meet certain objective standards. According to the author:

[This bill] establishes an opt-in small lot subdivision framework for local agencies to consider adopting. The framework limits the number of improvements an agency may impose upon a subdivided parcel while ensuring this time-certain process is limited to urban infill areas where the supporting infrastructure already exists. By providing housing development project proponents the needed certainty when considering whether to subdivide a parcel, this bill maintains local control of planning decisions while helping to spur the production of desperately needed housing units.

1. Background. The SMA establishes a statewide regulatory framework for controlling the subdividing of land. Cities and counties approve tentative maps that are consistent with their general plans, typically attaching numerous conditions. Once subdividers comply with those conditions, local officials must issue final maps.

For smaller subdivisions the conditions local governments can require is limited and local officials issue parcel maps rather than tentative and final maps. Parcel maps may be approved through a one-step discretionary process.

Under the SMA, creating higher-density small lot homes on undeveloped parcels typically requires a developer to go through a two-step tentative and final map process before construction can proceed, even if the small lot homes would achieve the same density as a multifamily dwelling complex built on the same existing parcel.

This bill allows subdivisions designed to create small lot homes that comply with objective requirements to use a single-step parcel map approval process.

1. Related Legislation. This bill includes provisions that are substantially similar to provisions in and AB 3155 (R. Rivas), of this legislative session. AB 3155 is pending hearing in this committee. Should both bills move forward, the authors should work to resolve any overlapping or conflicting provisions.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: May 12, 2020

ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT

Cecilia Aguiar-Curry, Chair

ABPCA Bill Id:AB 3234 (

Author:Gloria) – As Amended Ver:May 4, 2020

SUBJECT: Subdivision Map Act.

SUMMARY: Defines small lot subdivisions and authorizes local governments to adopt small lot ordinances that streamline certain provisions of the Subdivision Map Act (SMA) for subdivisions of land that meet the definition of a small lot subdivision. Aligns SMA approval
of tentative and parcel maps for housing development projects with provisions of the Housing Accountability Act (HAA). Specifically, this bill:

1. Defines a small lot subdivision as a subdivision of land that meets the following:
   1. The subdivision is located on a site that includes all of the following features:
      1. The site is an infill site, defined as a site that was either previously developed or is a vacant site where at least 75% of the perimeter of the site adjoins parcels that are developed with qualified urban uses;
      2. The site is located in an area or designated place identified as an urbanized area or urbanized cluster by the United States Census Bureau;
      3. The site is zoned for, or has a general plan designation that allows for, single-family dwelling units, multifamily dwelling units, or mixed-use developments;
      4. The site is less than five acres;
      5. The site’s minimum lot size is no smaller than 1,200 feet, unless a smaller size is approved by the local agency; and,
      6. The site’s maximum lot size is 2,000 square feet or less.
   2. The subdivision is located on a site that does not include any of the following features:
      1. The site does not include parcels created within the past 10 years, unless the parcel was created as the result of the plan of a redevelopment agency;
      2. The site does not require more than one parking space per parcel;
      3. The development of the site does not require the demolition or alteration of any of the following types of housing:
         1. Housing that restricts rents to levels affordable to persons and families of moderate, low, or very low income;
         2. Housing that is subject to rent or price control; or,
         3. Housing occupied by tenants within the last seven years.
      4. The site does not include a parcel where the owner of residential property has withdrawn accommodations for rent or lease within the last 15 years;
   3. The site does not contain either of the following:
      1. A historic structure that is on a national, state, or local historic register; or,
      2. Tribal Cultural Resources identified pursuant to the city, county, or city and county’s consultation with a California Native American tribe, undertaken in compliance with the California Environmental Quality Act (CEQA).
2. Authorizes a city or county to provide for the creation of small lot subdivisions provided that the city or county adopts a small lot subdivision ordinance that includes provisions that:
   1. Incorporate the definition of small lot subdivision specified in 1), above; and,
   2. Allow for concurrent processing of grading permits, building permits and other approvals necessary to commence construction upon approval of a parcel map.
3. Allows a city or county that adopts a small lot ordinance pursuant to 2) above, to require smaller lots, less parking, or greater density than the levels established in the small lot subdivision definition specified in 1), above.
4. Provides that an action by a city or county to adopt a small lot subdivision ordinance that meets the requirements outlined in 2) and 3), above is not subject to CEQA.
5. Amends the SMA to allow a small lot subdivision to be eligible for a parcel map and prohibits a local government from requiring:
   1. A tentative and final map for a parcel that is created in connection with a small lot subdivision; or,
   2. A tentative map in connection with a parcel map for a parcel that is being created in connection with a small lot subdivision.
6. Extends limitations on improvements local governments can require for subdivisions of less than five parcels, to small lot subdivisions that meet the definition in 1), above.
7. Requires a local government to ministerially approve a parcel map created in connection with a small lot subdivision that meets the definition in 1), above.
8. Requires a local government to approve a tentative map or a parcel map for a housing development project if substantial evidence in the record demonstrates the following:
   1. The proposed map, and the design or improvement of the proposed subdivision is consistent with the objective standards contained in the applicable general and specific plans and all applicable zoning and design review standards;
   2. That the design of the subdivisions or the proposed improvements would not result in specific adverse impacts to public health and safety, or that feasible methods can be applied to mitigate the adverse impact; or,
   3. That the design of the subdivision or the proposed improvements will not conflict with specified easements acquired by the public for access through, or use of property within the proposed subdivision, unless the governing body finds that substantially equivalent alternate easements will be provided.
9. Provides that no reimbursement is required by this bill, pursuant to Section 6 of Article XIII B of the California Constitution, because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this bill.

EXISTING LAW:

1. Planning and Zoning Law requires every city and county to adopt a general plan that sets out planned uses for all of the area covered by the plan, and requires the general plan to include seven mandatory elements, including a land use element.
2. Requires major land use decisions by cities and counties, such as development permitting and subdivisions of land, to be consistent with their adopted general plans.
3. Requires, under CEQA, lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or an environmental impact report (EIR) for this action, unless the project is exempt from CEQA.
4. Provides, pursuant to the SMA, the following related to the subdivision of land:
5. Requires a city or county to require a tentative and a final map for all subdivisions of land creating five or more parcels, except for subdivisions which meet specified conditions;
6. Requires a city or county to require a parcel map for subdivisions meeting specified conditions;
7. Allows a city or county to require a tentative map where only a parcel map is required;
8. Limits the improvements a city or county may require for a subdivision of land that is less than five parcels; and,
9. Requires a legislative body of a city or county to deny approval of a tentative map or a parcel map if it makes any of the following findings:
   • 1. That the proposed map is not consistent with applicable general and specific plans;
     2. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans;
     3. That the site is not physically suitable for the type of development;
     4. That the site is not physically suitable for the proposed density of development;
     5. That the design of the subdivision or the proposed improvements are likely to cause environmental damage, injure wildlife, or are likely to cause serious public health problems; or,
     6. That the design of the subdivision or the type of improvements will conflict with certain easements providing access through or use of property within the proposed subdivision.
10. Establishes the HAA, which provides that when a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria in effect at the time that the housing development project’s application is complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon specified written findings.

FISCAL EFFECT: This bill is keyed fiscal.

COMMENTS:

1. Background. State Planning and Zoning Law, the California Environmental Quality Act, the Subdivision Map Act, and the Housing Accountability Act all establish parameters that govern local development.
   1. Planning and Zoning Law. Planning and approving new housing is mainly a local responsibility. The California Constitution allows every city and county to “make and enforce within its limits, all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” It is from this fundamental power (commonly called the police power) that cities and counties derive their authority to regulate behavior to preserve the health, safety, and welfare of the public – including land use authority.

State law provides additional powers and duties for cities and counties regarding land use. The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all of the area covered by the plan. A general plan must include specified mandatory “elements,” including a housing element that establishes the locations and densities of housing, among other requirements. Cities’ and counties’ major land use decisions – including most zoning ordinances and other aspects of development permitting including subdivisions of land –must be consistent with their general plans.

• 1. California Environmental Quality Act. CEQA requires a lead agency to prepare and certify an EIR on a project that it proposes to carry out or approve that may have a significant effect on the environment. Alternatively, the lead agency may adopt a negative declaration if it finds that the project will not have a significant effect on the environment. Amendments to zoning ordinances and general plans are considered projects and are therefore subject to CEQA review.

Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures.

• 1. The Subdivision Map Act. The SMA establishes a statewide regulatory framework for controlling the subdividing of land, which generally requires a subdivider to submit, and have approved by the city or county in which the land is situated, a tentative map. Cities and counties approve tentative maps that are consistent with their general plans, attaching scores of conditions. Once subdividers comply with those conditions, local officials must issue final maps. Approving tentative maps is a discretionary action. However, once the conditions of a tentative map are met, a final map is typically approved ministerially.

For smaller subdivisions (lot splits), the level of improvements local governments can require for the subdivisions are statutorily limited and local officials issue parcel maps rather than tentative and final maps. Parcel maps may be approved through a one-step discretionary process at the local level. However, local governments may, at their discretion, require a tentative parcel map followed by final parcel map for these subdivisions.

• 1. The Housing Accountability Act. The HAA was enacted in 1982 in response to concerns over a growing rejection of housing development by local governments due to not-in-my-backyard (NIMBY) sentiments among local residents (SB 2011, Greene). The HAA, also known as the “Anti-NIMBY” legislation, restricts a local agency’s ability to disapprove, or require density reductions in, certain types of residential projects. The HAA limits the ability of local governments to reject or render infeasible housing developments based on their density without a thorough analysis of the economic, social, and environmental effects of the action. When a proposed development complies with objective general plan and zoning standards, including design review standards, a local agency that intends to disapprove the project or approve it on the condition that it be developed at a lower density, must make written findings based on substantial evidence that the project would have a specific, adverse impact on the public health or safety and that there are no feasible methods to mitigate or avoid those impacts other than disapproval of the project.

1. Author’s Statement. According to the author, “One primary factor contributing to California’s housing and homelessness crises has been the underproduction of housing units in the state. Large parcels of developable land are often underutilized, particularly in urbanized, infill areas, because the process for subdividing the lot can be too cumbersome and make the project infeasible. AB 3234 establishes an opt-in small lot subdivision framework for local agencies to consider adopting. The framework limits the number of improvements an agency may impose upon a subdivided parcel while ensuring this time-certain process is limited to urban infill areas where the supporting infrastructure already exists. By providing housing development project proponents the needed certainty when considering whether to subdivide a parcel, this bill maintains local control of planning decisions while helping to spur the production of desperately needed housing units.”
2. “Missing-Middle” Housing. The cost of housing in California is the highest of any state
   in the nation. Additionally, the pace of change has far outstripped that in other parts of the country. While housing in California was 30% more expensive than the U.S. average in 1970, now it is 250% more expensive. Although incomes have also increased over that period, they have done so at a much slower pace. The result is that housing has become much more expensive. Only 28% of households can buy the median priced home. More than half of renters and 80% of low-income renters are rent-burdened, meaning they pay more than 30% of their income towards rent. According to a 2016 McKinsey Global Institute report, Californians pay $50 billion more per year for housing than they are able to afford (nearly $3,000 per household).

One of the many reasons that housing is too expensive is the type of housing that is being built. Almost all of the housing built in California is single-family (which can be an inefficient use of land) and mid- and high-rise construction (which is expensive to build). One strategy to reduce the cost of housing is to facilitate the construction of “missing-middle” housing types that accommodate more units per acre, but are not inherently expensive to build. This includes medium-density housing, such as duplexes, fourplexes, garden apartments, town homes, and so forth. In addition to being land-efficient while being less expensive to build, these housing types have several other benefits, including:Being more contextually similar to existing single-family neighborhoods;

• 1. Providing sufficient density to support the shops, restaurants, and transit that are associated with walkable neighborhoods;
  2. Helping expand the pool of homebuilders, since the construction and building materials are comparatively less complicated than larger mid- and high-rise structures; and,
  3. Being naturally less expensive in the market because each living unit is typically smaller than a single-family home, thereby helping increase access to opportunity and facilitating neighborhood equity and inclusion.

A major reason that these units are not being built is that not enough land is designated for multi-family housing under local zoning. A 2019 Terner Center survey of California cities and counties revealed that only 7% of local jurisdictions zoned more than half their land for multi-family housing, and only 35% zoned one quarter of their land for multi-family housing.

Additionally, even when land is properly zoned to allow the development of smaller units, existing maps may need to be subdivided into smaller parcels to allow for smaller homes that based on their size are “affordable by design.” Several cities have sought to encourage the development of smaller “starter homes,” such as town homes and bungalows in single family neighborhoods, as well as in areas zoned for commercial and multifamily development that remain undeveloped or underdeveloped by adopting small lot ordinances that streamline the development process for smaller homes.

This bill seeks to encourage the development of small lot homes by exempting from CEQA ordinances that streamline aspects of the subdivision process under the SMA and meet certain objective standards.

1. Small Lot Ordinances. In response to the growing housing affordability crises, several cities have considered adopting small lot ordinances to allow streamlined development
   of smaller single-family homes that can be built at a greater density than traditional single-family neighborhoods.

Notably, the City of Los Angeles developed a small lot ordinance in the early 2000s, to encourage the development of smaller townhomes and bungalows on undeveloped lots within the City. The ordinance reduced the minimum lot size substantially for single family homes and allowed small lot homes to be built in undeveloped commercial and multifamily lots. Since 2010, 1,413 small lot units have been issued a certificate of occupancy in the City of Los Angeles. Small lot subdivisions in the City are permitted at the existing residential density allowed in the zone. The City has found that approved small lot subdivisions in multifamily residential zones have an average density of 39 dwelling units per acre and approved small lot subdivisions in medium or medium-high density multifamily zones have an average density of 61 dwelling units per acre. While this density is lower than the maximum density allowed for in these zones, it is substantially higher than the eight-unit-per-acre density in single-family zones in the City of Los Angeles.

Local ordinances and efforts notwithstanding, under the SMA, creating higher density small lot homes on undeveloped parcels typically requires a developer to go through a two-step tentative and final map process before construction can proceed. This is the case even if the small lot homes would achieve the same density as a multifamily dwelling complex built on the same existing parcel. For example, a one acre parcel in an area zoned for a density of
20 units per acre could be used to create a 20 unit apartment complex. However, to develop small lot homes at the same density on that parcel, the SMA requires a developer to first apply for a tentative and final map to create 20 separate lots before small lot homes can be built. This bill seeks to streamline the subdivision process under the SMA by permitting jurisdictions to allow subdivisions designed to create small lot homes that comply with objective requirements to use a single-step parcel map approval process.

1. Tentative and Parcel Maps. For large subdivisions (five parcels or more), a city is required to issue a tentative and final map. Tentative maps are discretionary actions and cities may attach conditions to the map prior to approval. Once a developer meets the requirements
   of a tentative map, a final map will be issued. For smaller subdivisions, a parcel map may be issued, which allows for a simpler one-step process. A parcel map does not require the issuance of a tentative map. However, under the SMA, local governments may require a tentative map in connection with a parcel map. This makes the issuance of a parcel map a two-step process and more similar to the tentative and final map process required for larger subdivisions.

This bill seeks to streamline the subdivision process for small lot subdivisions that are less than five acres in size by:

• 1. Extending the parcel map process to small lot subdivisions that would otherwise be required to obtain a tentative and final map; and,
  2. Making the issuance of a parcel map for a small lot subdivision a one-step ministerial process for small lot subdivisions that meet the objective criteria in the bill.

The objective standards that a subdivision must meet under the bill are designed to ensure that small lot subdivisions are only eligible for a one-step ministerial parcel map if they include certain attributes that protect low-income households, the environment, and cultural resources. These criteria include requirements that the parcel to be subdivided:

• 1. Is an urban infill project;
  2. Does not involve the elimination of low income or deed restricted housing;
  3. Meets maximum size requirements; and
  4. Does not disturb historic or Tribal Cultural Resources.

These provisions effectively limit the applicability of the bill to urban infill areas where the supporting infrastructure improvements that are normally required in the subdivision process already exist. In addition to meeting these criteria, a small lot subdivision is only eligible for the streamlined parcel map process provided for in the bill if the city or county where the land will be subdivided elects to adopt a small lot ordinance that incorporates the provisions of this bill.

1. Overlapping Provisions in the SMA and the HAA. The SMA requires a city or county to disapprove tentative and parcel maps, if the proposed subdivision does not meet specified criteria. The listed criteria includes objective standards as well as standards that may be subjective in nature, including whether the site is “physically suitable” for the development. In effect, if the city or county finds that a development is not physically suitable, under the SMA, it must disapprove the tentative or parcel map, effectively denying any project that is contingent upon the map approval.

In contrast, under the provisions of the HAA, when a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria in effect at the time that the housing development project’s application is completed, a city or county can only disapprove the project if the local agency makes a finding that project will have a “specific adverse impact” and that there is no feasible method to mitigate or avoid the adverse impact. “Specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Effectively under the HAA, subjective standards cannot be a basis for denial of a housing development project.

While the SMA requires a local government to disapprove a tentative or parcel map that is not physically suitable, the HAA prohibits a local government from disapproving a housing development project based on subjective standards. Whether a site is “physically suitable” is not necessarily an objective standard, creating a potential conflict in how these two laws are implemented when a housing development project requires a tentative or parcel map. This ambiguity regarding the predominance of the SMA or the HAA has led to litigation between developers and local government. See: Eden Housing, Inc. v. Town of Los Gatos, County of Santa Clara Superior Court, Case No. 16CV300733, and Honchariw v. County of Stanislaus (2011) 200 Cal. App. 4^th. 1066.

Of note, the County of Stanislaus denied a housing development project on the grounds that the site was not physically suitable and therefore must be denied under provisions of the SMA. The County of Stanislaus argued that unless and until the County Board of Supervisors makes all of the findings required under the SMA, then the written findings that must be made pursuant to the HAA in order to deny a project are not required. In Honchariw v. County of Stanislaus, the court found otherwise and held that a finding that a project is not approvable under the SMA does not relieve a city or county from compliance with the HAA for housing development projects.

While the court held that the County did not proceed in the manner required by law by denying the approval without making the findings of the HAA, or otherwise demonstrating that the project violated objective standards, the court did not specifically define "objective" for purposes of compliance with the HAA. However, while reviewing the history of the HAA, the court explained it had been "amended to strengthen the law by taking away an agency's ability to use what might be called a 'subjective' development 'policy' (for example, 'suitability')…" supporting the idea that that physical suitability is not an objective standard.

Last year, SB 330 (Skinner), Chapter 654, Statutes of 2019, amended the HAA to define, until 2025, "objective" as "involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official."

This bill seeks to resolve statutory ambiguity between the SMA and the HAA. The bill amends the SMA to clarify that a tentative or parcel map for a housing development project, as defined under the HAA, can only be disapproved on the basis of objective findings that are consistent with the HAA.

1. Related Legislation. This bill includes provisions that are substantially similar to provisions in AB 2666 (Boerner Horvath) and AB 3155 (Robert Rivas), which were referred to the Housing and Community Development Committee. Should all three bills move forward, the authors should work to resolve any overlapping or conflicting provisions in their legislation.
2. Committee Amendments. The Committee may wish to consider a number of technical amendments to the bill:
   1. The author and sponsor intend for the provisions streamlining the subdivision process to only be applicable in a city or county that opts-in to the provisions of the bill by adopting an ordinance. In the bill’s amendments to Government Code Sections 66411.1, 66426, and 66428, it is not entirely clear that the streamlined provisions are only applicable in a city or county that adopted an ordinance. The Committee may wish to consider an amendment to those sections clarifying that the streamlined SMA provisions are only applicable in a city or county that adopts an ordinance pursuant to proposed Section 66462.1.
   2. The language includes an erroneous reference to a nonexistent section of the Government Code (Section 65913.6). The Committee may wish to consider an amendment removing this reference from the bill.
3. Arguments in Support. The American Planning Association, California Chapter (APA California) writes, “AB 3234 allows local jurisdictions to create ordinances to review and approve small lot subdivision developments that would receive a streamlined, ministerial approval. Specifically, these developments would require only a parcel map if the development is located on an infill site, is zoned for single-family, multi-family or mixed-use and is no larger than five acres. The bill also sets reasonable restrictions on minimum and maximum lot size square footage and parking requirements calibrated to ensure reasonable densities and compact development to promote lower cost construction and home ownership opportunities. Importantly, the bill also applies anti-displacement protections and protections for historical and tribal cultural resources. APA California believes that the streamlined approval of small lot developments will encourage expedited housing development that Californians desperately need. Encouraging streamlining of developments with smaller lots creates a path to produce higher density, smaller units that are intended to be more affordable by design…

“Under existing law, a local jurisdiction may not approve a tentative map or parcel map unless it makes specified findings, including some findings that are not objective. However, a court of appeal decision – Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066 – ruled that Map Act findings that are not objective cannot be used to deny a project under the HAA. This leaves public agencies in an impossible situation when it feels that subjective Map Act criteria has not been met: approve the project under the HAA in violation of the Map Act, or deny the project as required by the Map Act in violation of the HAA.

“AB 3234 will make the traditional Map Act findings inapplicable to residential subdivisions. Instead, the bill would replace those findings with objective standards for residential development projects, including that the proposed map is consistent with objective standards contained in applicable general plan, specific plans and all applicable zoning and design review standards. This amendment would harmonize the Map Act’s requirements with the HAA, further advancing the state’s goal of promoting housing development for all.”

1. Arguments in Opposition. None on file.

REGISTERED SUPPORT / OPPOSITION:

Support

American Planning Association, California Chapter [SPONSOR]

Bay Area Council

California Association of Realtors
California Building Industry Association

California Community Builders
California YIMBY

Opposition

None on file

Analysis Prepared by: Hank Brady / L. GOV. / (916) 319-3958