Tune in to find out how ministerial approval could reshape the housing landscape in San José. We talk with Ruth to learn what ministerial approval entails and how it is helping affordable housing get built faster. The discussion dives into the background and rationale for ministerial approval and how this State-mandated process is helping the City cut red tape and address its housing shortage. Listeners will gain a deeper understanding of how the process works and how it differs from the typical planning and permitting process.
Episode 20: Ministerial Approvals
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JS: Welcome to Dwellings, a podcast from the city of San José Housing Department, where we talk to thought leaders about ending homelessness, building affordable housing and key housing policies. I'm Jeff Scott and I'll be your host for season four of Dwellings. On today’s episode, I’m joined by Ruth Cueto, Supervising Planner at the City of San José Planning, Building and Code Enforcement. We will be discussing the concept of ministerial approvals, what they are when they are used, and how this streamlined permit process for housing development is implemented in the city of San José.
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JS: So, Ruth, welcome and thank you for joining us.
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RC: Thank you for having me, Jeff. As you noted, I am with the Planning Building Code Enforcement Department. I am a supervising planner and I oversee a team of planners. One of the planners on my team is responsible for processing permits for affordable housing developments in San Jose, and many of many of their projects are actually ministerial projects, which, you know, I think we'll get into. The other half of my team focuses on housing policy, so I am the housing team within planning.
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JS: So ministerial approval is a phrase that some people may not be familiar with. Can you tell us what that means?
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RC: A ministerial with a ministerial process and review. There is no community meeting required. There is no public hearing. We cannot have a public hearing where you can go and voice your concerns and, you know, either the council or the director or the decision maker can weigh the community's responses or feedback as part of their approval or disapproval of a project. And ministerial all so many times it means it's streamlined. We have timelines for review that are much shorter. And they also don't have to do what we call CEQA review or environmental review. So there's no environmental impact report or initial study from point A to point B, It's very clear for the developer what they're getting themselves into.
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JS: So has ministerial approval in California or the city of San Jose have been around for a long time, or is this a fairly new development?
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RC: I think I would say somewhat new. The the law that I think is usually sort of describes the ministerial process. It's SB 35 Senate Bill 35 authored and authored by I think it was Senator Scott Wiener, approved by the governor in 2018. That's the one that most people think of when we talk about ministerial review. There are a few other laws that are in place that also allow for ministerial review, but that came into play in 2018 and at the end of 2018 was the when the city of San Jose received its first application under that state law. So our first approvals didn't happen until 2020, but since then we've gotten lots of interest from affordable housing developers to use that process.
00;03;03;05 - 00;03;10;16
JS: What was the driving force behind the growth of ministerial approval? You know, what was the what was the need that it was addressing?
00;03;10;20 - 00;05;56;28
RC: So the legislature and, you know, you sort of can see this in the hearings and in the state law itself has made it a point that affordable housing and housing in general is the production and the construction of housing is of utmost importance to the state of California. Whether we're looking at it economically, socially, it's a quality of life issue. And what the legislature has experienced is that, in their opinion, too many cities have created obstacles for the approval and construction of housing and specifically affordable housing. So I think, you know, they were hearing from developers, from advocates of housing, of affordable housing, that the process was just too difficult and onerous for many developers all throughout California. I'd like to think that that's that wasn't the case in San Jose. And actually, I don't think it was because we we have a really good reputation of building affordable housing here at least through the eighties and nineties with redevelopment and the Housing Department's support. But it was just it was it was too onerous. You know, you had projects that were going through the process, let's say, mid-stream, and then the city can come back and say, well, you know, we actually want you to consider this design change because the community is pushing back on this or, you know, there was just more negotiation, I think, and a lot of pushback. And what this what this law did was that not only did it provide for that, you know, there's a timeline. We have to let these developers know whether they're approved or not. But a very important piece of it is that we can only hold projects to objective development standards. And objective means we can't use something like, you know, this design doesn't fit into the character of the neighborhood. That's subjective, right? Character can mean one thing to me, one thing to you, one thing to the developer. So it's not measurable and it's not objective. And so the the that state law actually it very much allows that sort of that that is the driving force when we're reviewing projects is that we can only hold it to objective standards. And these standards also have to be easily accessible and viewable by the developer. We can't pull this obscure, you know, policy that was in place 30 years ago that no one knows about at the last minute and then tell a developer, well, you're not you're not building it to this standard, so, you know, we're not going to approve it or you have to resubmit. So I think that's that was I think the gist and sort of why the legislature pushed this. It was a housing crisis. It's that it's getting difficult. It was becoming difficult for people to build and cities were getting in the way. And and so that's what it's trying to accomplish is just really streamline this process.
00;05;57;01 - 00;06;07;07
JS: And is ministerial approval focused only on housing or is it all types of bail out? And if it's housing, is it all types of housing or is it only affordable housing?
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RC: It's only housing residential uses. It could be a mixed use project, but the purpose is for residential and SB 35 actually allows for a mix of ink of affordability. SB 35, depending on the city, would apply to a project that is at least 50% restricted, affordable. So it could have 50% market rate, 50% affordable. However, in San Jose, I think we've only seen 100% affordable projects take advantage of the state law.
00;06;41;12 - 00;07;16;27
JS: Just for our audience out there, when we say affordable housing, but we're talking about you just use the phrase deed restricted. We're talking about housing that by law has to has to have limits on how high the rent can be and also limits on how high the income can be for the people who occupy that housing. So can you tell us, Ruth, how is how has the city of San Jose implemented SB 35 or ministerial approval in general? Can you walk us through what it might look like if if I'm a developer with an affordable housing project and I come to you with that approval process is going to look like.
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RC: Sure. So I'd like to say, though, that, you know, in San Jose we've even before this bill, we didn't treat an affordable project any different from a market rate or mixed income project. So again, going back to history here and our willingness to build and support affordable housing in San Jose, so you would come in with your application. We have specific applications for SB 35 and there's another state law, AB 2162, that also provides a streamlined review. It calls out all the requirements. So with SB 35, there are some restrictions in terms of the sites that can use it. It has to have a specific zoning and general plan. So the review is very similar to any other, you know, market rate project that's not using ministerial review. The main difference is that we don't require CEQA or Environmental review, so that cost in that application is not required for someone who's using SB 35. There is no community meeting required, unlike our other projects, and there's also no public hearings. So I think most most residential projects in San Jose end up going to a directors hearing. So the director of our department makes the final determination on a project. Those are on Wednesday mornings, but in this case they wouldn't. That's not how they would be approved. You know, staff does. Their review determines consistency with the objective standards I described. And once it's we deem it consistent and it's really just checked all these boxes. We start working on a draft permit and our director reviews it, make sure we and our analysis is correct and signs the permit and that's it. So very straightforward.
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JS: So in a in a ministerial approval where a lot of those public meetings don't take place and subjective review doesn't have to take place within with the neighbors, have an opportunity to voice their concern, is there any step in the process that allows them to come forward and expressed reservations, are concerned with the design of the development?
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RC: Yes. So all projects, including ministerial projects, are required to post what we call our on site notice. And these are notices. These are sort of four by three foot, you know, notices that describe the permit that they're requesting and it has contact information for the project planner so that the neighbors can contact us or residents can contact us with questions or their concerns. That is pretty much the extent of the outreach if you want to if you want to call it that. But that is a way for the community to know what's going on and that there is a proposal there. We always get these kinds of, you know, emails from neighbors, even if it is ministerial. So we we we do our best to respond and provide information on the limitations of what we can and can't do with their concerns. Other questions. And I would say to that actually many maybe 99% of the projects we've seen under ministerial review, the developer still goes ahead and has a community meeting on their own. They get notices, they they coordinate, they host them virtual or in person. So from my my experience, they are willing to listen. And sometimes even modify the design if there's, you know, some questions or issues and and take that feedback. But there's still that opportunity to communicate with us. And we also have for residents who are just interested in general in development in San Jose, we have a website SJ it's in San Jose SJ permits dot org and you can sign up to get notification I think a few times a week or once a week on any and all applications in your council district or throughout the city. So you can be made aware of what's been filed.
00;11;20;20 - 00;11;35;22
JS: In your experience, have you seen a reduction of X percent of time it takes to approve a process or X number of months or anything like that that you can share with our audience that kind of quantifies the time savings or red tape savings?
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RC: Tes. So a few years ago, I think, yeah, a few years ago we did this analysis, So I'm not sure if it still stands, but we did find that the ministerial projects were approved two months sooner than just a regular discretionary project. So there was some time savings there, I would say to that. And I think the other sort of saving for the developer in this case is that they they wouldn't be subject to any CEQA lawsuits. And sometimes that's what can, you know, further delay a project even after approval is if there's someone filed a lawsuit against the developer or the city for approval of a project and they're using CEQA, the Environmental Quality Act law to to stall the project.
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JS: I see. And I would imagine in addition to maybe avoiding CEQA related lawsuits, environmental impact reports are probably fairly expensive, Correct? Is that. Yes.
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RC: Yes they are. And that yeah, that's another added cost is that additional analysis for the project.
00;12;37;08 - 00;12;49;07
JS: Can you give us a sense of the the general response that your department has received from developers since you started utilizing ministerial review? I would assume they like it, but I don't I don't know.
00;12;49;09 - 00;14;00;16
RC: Yeah, you know, I think I think in the beginning it took a brave developer to file the first application. My some conversations with developers were, you know, they felt they weren't ready to submit these because they felt it was, I don't know, an affront to the city. They wanted to be collaborative and they they felt like this law may engender, like some kind of animosity between the city and a developer because they're not going through our normal process. But we were very quick to dispel that. You know, this is a state law. We have to follow it. You know, we don't we don't want to get sued like other cities. The governor made this the law. And so we're we're very mindful of that. But I think, you know, after the first the first few came through the door, there was just more openness and willingness for the the affordable housing developers, because that's who is using the state law is to to use it pretty frequently. Like I said, I think about 90% or more of affordable housing entitlements since these bills came into play, have used a streamlined process. Very few of them go through our typical discretionary process.
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JS: Do you ever see projects where a developer starts down a more traditional kind of discretionary process and perhaps gets frustrated or sees some issues bubbling up? So they decide to kind of switch in midstream and go through the ministerial process instead?
00;14;18;10 - 00;14;46;29
RC: I believe we did have one project that did that, and maybe maybe there's more than there's only one I can remember. And it was early on in 2020, 2019 that did get frustrated with the discretionary process. And I think it had to do with some of our subjective design standards related to historic resources or adjacent. You know, it's near a historic district or something like that. But pretty much most folks, I think, come in ready to ready to do this.
00;14;47;01 - 00;14;52;09
JS: What do you think about the ministerial process? How does it affect your work and your approach to your work?
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RC: You know, I have to say it was I think it was difficult to sort of learn the process in the beginning. One, it was like I said, it was adopted and went into effect late, late 2018 and we received our first application right before the holiday break, which isn't helpful because we go on vacation. Then, you know, there's timelines for when we have to respond to them. And so it was definitely enhanced our skills and reading state laws, which are not always very clear and there's a lot of room for interpretation. However, in this case that did provide guidelines for cities to interpret the law. But the big the big sort of difference is that, you know, the objective, objective versus subjective standards. And when you look at, for example, our general plan and we rely on our general plan, that's like our first place to go when we're evaluating a project, we have, you know, ambitious goals and we want to see this great, you know, community come together. But that was drafted in 2011. And fast forward to 2018, 2019, where it says everything has to be measurable. You can't say things like your project should enhance the pedestrian quality, your project should, you know, all these shoulds that's out the door and so whereas before ministerial review, we can always point to those policies and say, this is what we want, it says should, but we want, you know, if we interpreted this shall and, and we feel very strongly about certain qualities of projects we no longer had that the ability to rest on that and it had to be very specifically language that says you must or you shall. And so going from having more discretion as a planner to push for changes to negotiate, that was difficult, I think, because we also realized, you know, a lot of our standards were written very subjectively. And and I can understand why a developer can get frustrated, right? Because they're like, what says I could I don't have to do. And here comes this planner who cares about the the width of the sidewalk and they're going to fight with me and it's going to, you know, So I get it to that point. But for us, I feel like it was just losing that control really over over what we can and can't approve and how we approve it. And I would say to that with ministerial review, actually SB 35, the law was written in a way that it says that a site can qualify if either the general plan allows for housing or the zoning district. And in San Jose we're cleaning this up. But for a long time, our general plan and the zoning did not align. So we had sites that said, you know, commercial, neighborhood, community commercial, and the zoning was, for example, multifamily. Well, a developer doesn't usually look at the general plan. They look at the zoning. And so they come in and say, I want to build housing. And the planners say, No, no, no, it's only commercial. So we ended up with a few sites like that where we felt very strongly that the general plan should prevail. And if it doesn't allow for housing and doesn't allow for housing, but this law sort of allowed the ability for a few projects to move forward where we didn't feel it was it was it wasn't it didn't align with our vision, our vision for the city. So just, you know, the loss of local control, the loss of sort of, you know, having a say in some of these projects, that was probably the more difficult part for our our planners. But I would say too, that it's definitely opened our eyes to how difficult, especially affordable projects can be, you know, to get their entitlements and their permits when they don't have this process, when they don't have this this way of sort of getting to the end of the line and not have to do community meeting after community meeting after, you know, and everyone sort of whittling down. And I've been to a few community meetings recently and they were actually ministerial projects. But again, the developer was going to go out there and I hadn't been in a while and going back in those spaces of, you know, very angry and frustrated residents and feeling like they had, you know, they just they were completely against it. It just reminded me of, you know, why these laws are important, because if they didn't, it very likely projects would not be approved. There could be a lot of pushback and it could just be, you know, whittled away. And it wouldn't it would end up with a permit that doesn't really serve the purpose of the of the project.
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JS: And so as you talk to colleagues around the Bay Area, around the state, other other planners in other cities have their experience has been similar to, you know, the way they've tried to implement the law but similar to San Jose or San Jose, unique in any way.
00;19;39;04 - 00;21;01;25
RC: You know, I think we've all sort of experienced this very similarly. I've talked to many jurisdictions, many cities, especially in the beginning when we were trying to, you know, figure out a process, put together an application checklist. We were all sort of learning at the same time and came up, came upon the same sort of obstacles and I think even, you know, a few cities have have reached out and they're, you know, expressing their reservations and like. But isn't there a way we can say no? And it's like, no, there's no this is the point of this law, is that you are bound to do X, Y, and Z. So I know for for some people it seemed like a very hard pill to swallow, and they just could not believe that. No, we that can't be right. Like, we just we can't say no, we can't request this or that. And it's like, nope, that's that's the way it is. And, and I think I think some cities try to fight tried to fight that process and try to come up with obstacles. Honestly. And the legislature I think every year, if not almost every year since the adoption of that law they've they've the legislature has had to add more like clarifying language like you cannot do this post this project or you cannot do that, and we want to do it right. Like we just said, okay, that's the way it is. But I think some cities were trying to come up with creative ways to modify the process, but it's not working.
00;21;01;27 - 00;21;24;19
JS: Do you ever find developers who are willing to talk to you at the outset? The very beginning of a project before they get too far down the path and sit down with you as a planner and discuss the project and take feedback from you early on. And knowing that you can't necessarily just say no to them but kind of gently try to direct them. Are they open to that kind of input?
00;21;24;21 - 00;22;38;13
RC: Yeah, I think I think most are. You know, in San Jose, we have a preliminary review application process where it's not it's not a development permit. It's more of, hey, I have a site I think I want to do this. What what can you tell me? San Jose And we go through our general plan, zoning all our policies and kind of give them a heads up. You should be aware you're near a creek or these are the standards that will apply to your project. And that's, I think, a good opportunity to sort of lay the foundation of this is our vision for the area. You know, we would appreciate, you know, if you can do X, Y, Z. So and I should say too, that, you know, our team, we also take one of the planners on my team. Her role is to facilitate affordable housing. And part of that is taking phone calls from developers or applicants and talking, you know, maybe 30 minutes about a specific site, whether it's very sort of, you know, what is the zoning, what is the general plan, Can I build housing? And then all the way to will the city support? We can't say the city will support. We have to do your analysis. But having those conversations early on, it does happen. You know, that's that's what my team does and what we're here to do. So the development community.
00;22;38;15 - 00;22;54;06
JS: Another this law has been in effect for a few years. Have you seen any unintended consequences that maybe when the law was first established, the legislature didn't foresee, or has it been fairly smooth since the initial rollout?
00;22;54;08 - 00;23;47;25
RC: I mean, I would I would go back to what I said earlier about San Jose in our unique situation where the general plan and the zoning don't align. And I think we would have appreciated a modification to that language where it would say, you know, the general plan allows for housing because that is a blueprint for a city. It's not the zoning, you know, in our opinion, that's what sort of that guides everything else. That's where you start. So for in our case, you know, we end up with housing on sites that we didn't envision or that we felt were not appropriate for for that for those developments. But other than that, I don't I don't think so. I mean, it's at least in San Jose, it's accomplishing, I think, what it's intended to do. We have many, many projects that have been approved and a few thousand units approved under SB 35 and other ministerial review.
00;23;47;27 - 00;23;52;25
JS: I'm sorry, can you can you share that number again? How many units of housing have been approved under this.
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RC: 2000 units? Over 2000 units under SB 35.
00;23;56;04 - 00;24;00;29
JS: Wow, that's great. And you said you got your first application in 2020. So.
00;24;01;01 - 00;24;03;03
RC: Yeah, approved in 2020. Yeah.
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JS: Okay. So in two, two and a half years, you've gotten over 2000 units approved through this process. That's pretty impressive.
00;24;10;29 - 00;24;13;23
RC: Yeah.
00;24;13;26 - 00;24;16;13
JS: You and the team must have been very busy.
00;24;16;16 - 00;24;33;21
RC: Yes, very, very busy. Yes, it's been and you know, it's kind of it's cyclical, but we're back in the the busy season as well. So my planners working on many, many projects. And we also have other folks within planning that have taken on a ministerial review. But yeah.
00;24;33;24 - 00;24;47;14
JS: Well, Ruth, I know I found this very enlightening, very educational. Is there anything else that any big issues or topics related to this, your approval that I have failed to ask you about that you'd like to share or mention?
00;24;47;16 - 00;25;50;18
RC: We've been doing this for a few years. Projects are being built, so we're not just issuing permits. Our first SB 35 project, I think celebrated their grand opening late last year or like the fall of last year. So it's exciting to see. The very first one that came through the door is actually the first one that was constructed. And, you know, I was on the site. I'm familiar with the site, so I remember it was a strip mall and now it's like this seven storey affordable housing multifamily project and it looks really, really great. But I would say that if folks have more and you know, they're interested in learning more about this, they can always visit our website. We do have a web page dedicated to ministerial reviews and the process and how staff evaluates it and any questions who they can contact. There's also SJ permits dot org where they can they can look up permits, permit applications within their council district or throughout the city just to be informed on what's going on.
00;25;50;20 - 00;26;38;24
JS: Thanks so much Ruth for joining me for today's episode. Thanks for listening to Dwellings, the City of San José Housing Department podcast. Our theme music is “Speed City,” composed and performed by Etienne Charles. Thanks to San José Jazz for letting us use their music. If you like the show, please subscribe and share with your friends and family. If you're looking for more ways to get involved with housing and homelessness response, please check out the show notes. You can follow the Housing Department on social media. We're on Twitter and Facebook at S J city housing. If you have questions or comments about today's episode, please send them to housingcomms@sanJoséca.gov. Our artwork is by Chelsea Palacio. Dwellings is produced by me, Jeff Scott and Jose Chavez of the Housing Department.