Trainers tell Cupertino commissioners state housing laws sharply limit local control: RHNA, density bonuses and ministerial approvals explained

Barb Kotz, housing attorney with Goldfarb & Littman, told the Cupertino Planning Commission on March 25, 2025, that a suite of state laws has substantially reduced local discretion over housing approvals and enforcement by the State Department of Housing and Community Development (HCD).

Kotz described recent statutory regimes that affect local planning: the housing element update and certification process, the Regional Housing Needs Allocation (RHNA), SB 330 preliminary applications, SB 35 streamlined approvals, density bonus law, and what is commonly called the builder’s remedy. She also reviewed HCD’s enforcement tools and the litigation climate for cities that deny housing projects.

Kotz said the housing element stands apart from other general plan elements because HCD must certify it; she noted Cupertino’s housing element received HCD approval on Sept. 4 of the prior year and that the city’s sixth‑cycle RHNA required additional capacity. "The state has really limited, local control over housing," Kotz said, and she quoted the Housing Accountability Act’s stated legislative intent: "the legislature's intent is to curb the capability of local governments to deny, reduce the density of, or render infeasible housing development projects."

Kotz summarized several high‑impact provisions:

- RHNA and housing elements: Cities must update the housing element every eight years; Kotz said Cupertino’s sixth‑cycle allocation required creating capacity for about 3,200 additional units and the city adopted 48 programs with deadlines to maintain HCD certification.

- SB 330 (preliminary application / vesting): A preliminary application can freeze development standards as of the filing date and requires a full application within statutory timelines; Kotz noted litigation over whether an applicant can keep resubmitting to extend the preliminary application period.

- SB 35 and other ministerial tracks: SB 35 can allow streamlined ministerial approval for qualifying housing projects; Kotz said an SB 35 project in Cupertino would typically require a substantial percentage of affordable units under the statute’s eligibility rules.

- Density bonus law: Kotz warned that density bonuses can allow projects to obtain waivers and concessions, request multiple incentives and claim base densities at the high end of a general‑plan density range. "Density bonuses basically allow developers pretty much to, I shouldn't say this, but I will, pretty much to ignore your, your zoning standards," Kotz said, explaining waivers can include height, setbacks and open‑space standards and that concessions reduce project costs.

- Builder’s remedy changes: Kotz summarized recent statutory changes that reduced required affordable set‑asides in some builder’s‑remedy situations to as low as roughly 13% of the base density and described the statute’s interaction with density bonus rules.

On enforcement and litigation, Kotz said HCD can issue letters of technical advice, notices of violation and can withdraw certification if a city’s actions or inactions are inconsistent with an approved housing element; she said HCD also refers cases to the attorney general and that third‑party litigants commonly sue cities. Kotz cautioned that courts generally apply a pro‑housing presumption and that cities can face penalties and attorney fees if they lose.

Kotz advised commissioners that objective standards remain a key tool for reviewing housing projects if the city adopts them; she recommended careful documentation and advance coordination with staff because the state statutory framework has changed the balance of proof and timelines for housing approvals.

Ending: Commissioners asked technical follow‑up questions about Valco/Valco‑area projects, impact fees, SB 330 deadlines, minimum densities and appeals; staff and the presenters said they would provide additional detail in follow up.