Government Code Section 65583(a)(4) requires: “an analysis of potential and actual government constraints upon the maintenance, improvement or development of housing… for persons with disabilities as identified in the analysis pursuant to paragraph (4) of subdivision (a), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures. The analysis shall also demonstrate local efforts to remove governmental constraints that hinder the locality from meeting … the need for housing for persons with disabilities.
Government Code Section 65583(c)(3) requires the housing element provide a program to ”address and where appropriate and legally possible, remove governmental constraints to the maintenance, improvement, and development of housing for persons with disabilities. The program shall remove constraints to and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities.”
Additionally, there is new legislation that may impact the analysis for constraints for persons with disabilities. Assembly Bill 1561 (AB 1561), Chapter 195 (2020) (Gov. Code §65583…) authorizes an analysis, at HCD’s discretion, of those constraints upon housing for persons with a characteristic identified by a specified provision of the Unruh Civil Rights Act. Local jurisdictions that are responsible for preparing a housing element should consider and implement the requirements of this bill into the analysis.
Requisite Analysis
Housing element law requires that in addition to the needs analysis for persons with disabilities, the housing element must analyze potential governmental constraints to the development, improvement, and maintenance of housing for persons with disabilities; demonstrate local efforts to remove any such constraints; and provide for reasonable accommodations for persons with disabilities through programs that remove constraints.
Ordinances, policies, or practices enacted to protect the health and safety of citizens and further the general welfare must be periodically reexamined to determine whether they are accomplishing their intended purpose or, in practice, constitute a barrier to the maintenance, improvement, or development of housing with the effect of excluding housing variety and availability for persons with disabilities.
The analysis of potential and actual constraints upon the development, maintenance and improvement of housing for persons with disabilities must include, but is not limited to:
Review Zoning and Land-Use Policies and Practices
Policies and procedures should:
- Ensure compliance with fair housing laws.
- Include a provision for group homes with fewer than six and more than seven residents, specifically for people with disabilities, other than those residential zones covered by state law.
- The housing element should include zoning and processing requirements for group homes, with fewer than six and more than seven residents. The element should demonstrate that these uses are allowed in all residential zones as well as examine potential constraints related to approval procedures for the use.
- For group homes with six or fewer residents, the housing element should demonstrate that this use is treated in the same manner as the residential uses in the specified zone.
- For group homes with seven or more residents, regardless of if the home is licensed or unlicensed, a local government must address conditional use permit (CUP) requirements as a potential constraint. For example, the analysis could describe certainty around project approval, such as objective findings.
- Any other constraints on group homes, such as parking, spacing, etc. should be analyzed for potential constraints. See the Group Home Technical Advisory below in the ‘Resources’ section for more information.
- Include a broadened definition of family that 1) provides zoning code occupancy standards specific to the number of persons or unrelated persons and 2) complies with fair housing law.
- The housing element should provide an updated definition of “family” if it does not comply with current federal and state fair housing laws. Overly restrictive definitions risk violating not only these laws, but also the California Constitution’s protections of the rights of unrelated persons to live together in communal housing.
- Generally, the definition should not (1) distinguish between related and unrelated individuals and (2) impose limitations on the number of people that constitutes a family. See Assembly Bill 1041 (AB 1041), Chapter 748 (2022) for more information.
- Include siting or separation requirements for licensed, residential-care facilities to determine the extent to which the local restrictions effect the development and cost of housing.
- Include any minimum distance requirements in the land-use element for the siting of special needs housing developments do not impact the development and cost of housing for persons with disabilities.
- Distancing requirements for special needs housing developments, such as group homes and residential care facilities, should follow requirements laid out in Health and Safety Code §§ 1267.9, subd. (b). It is important to note that jurisdictions must ensure that special housing types such as group homes, should not be located within a specific distance of one another. HCD’s Group Home Technical Advisory can also provide more information (see Resources below).
- Include alternate residential parking requirements, including reduction, for persons with disabilities.
- Any other land use controls or permit procedures that may constrain housing for persons with disabilities.
Evaluate the Permit and Processing Procedures
Review the permitting and processing procedures for:
- The type of permit process, including any discretionary processes, approval findings, and decision-making standards, particularly if different from other residential uses of the same type in the same zone.
- Compliance with all state laws regulating a “by-right” designation and/or permit requirements of licensed, residential-care facilities with fewer than six residents in single-family zones.
- Conditions or use-restrictions on licensed, residential-care facilities with more than six residents or group homes that will be providing services onsite. Evaluate the extent to which these conditions affect the development or conversion of housing for people with disabilities
- A group-home public comment period. Evaluate the extent to which it differs from other types of residential development.
Review the Building Codes
Identify:
- The year of the uniform building code adoption.
- Any amendments that might impact housing costs or availability for persons with disabilities.
- Adopted universal design elements that address limited lifting or flexibility (e.g. roll-in showers and grab bars), limited mobility (e.g. push/pull lever faucets, wide swing hinges) and limited vision (e.g. additional stairwell and task lighting).
Review for Reasonable Accommodation
Evaluate the reasonable accommodation procedure in order to:
- Identify and analyze whether the locality has an established reasonable accommodation procedure.
- Describe the process for requesting a reasonable accommodation retrofit (e.g. ramp request).
- Evaluate approval body and timing (e.g. ministerial vs. discretionary).
- Evaluate and analyze any related fees
- List and analyze approval findings for consistency with Fair Housing requirements, especially including any findings related to conditional use permits
- Describe the extent to which existing requirements constrain or facilitate the application of an existing or proposed reasonable accommodation procedure (e.g. permit processing, zoning, building codes, accommodating procedures for the approval of licensed, residential-care facilities and Fair Housing Amendment Act physical accessibility efforts (e.g. American Disabilities Act retrofit efforts or other measures that provide flexibility).
Review for Programs
- Address the needs of persons with disabilities and the extent to which the local process for accommodation is different from that for other types of residential development.
- Remove or mitigate identified constraints and address the housing needs of persons with disabilities.
- Ensure information is available for people who wish to request a reasonable accommodation with respect to zoning, permit processing, or building laws.
- Assist in meeting identified needs. Contact local, special-needs service providers to help identify and analyze constraints to providing housing for persons with disabilities.
Helpful Hints
- Health and Safety Code Sections 1267.8, 1566.3, 1568.08 require local governments to treat licensed group homes and residential care facilities with six or fewer residents no differently than other by-right single-family housing uses. “Six or fewer persons” does not include the operator, the operator’s family, or persons employed as staff. Local agencies must allow these licensed, residential-care facilities in any area zoned for residential use, and may not require licensed, residential-care facilities for six residents or less to obtain conditional use permits or variances that are not required of other family dwellings.
- Entitlement jurisdictions should have conducted an analysis of impediments to fair housing for the purposes of receiving funds from HUD. This impediments analysis contains similar elements and may be a useful resource for the SB 520 constraints analysis.
- Nuisance and/or crime-free ordinances may be discriminatory and impact the cost and supply of residential development, therefore posing a constraint. Local governments should review Government Code 65583(a)(5) to ensure compliance with state law and demonstrate that the housing element will remove and/or mitigate constraints.
Related Links
- Reasonable Accommodation Ordinance (2019)
- HCD: Universal Design Model Ordinance (PDF)
- Building Changes
- Institute for Human Centered Design