California made history in 2022 when Governor Newsom signed a long-sought reform to deregulate local parking requirements on infill projects. But could one provision of the new law undermine its effect on the ground?
By Ethan Elkind
Ultimately, the point of AB 2097 was:
- to reduce dependence on automobiles,
- enhance access to buildings by non-vehicle modes, and
- lower the cost of building all types of housing near transit.
The issue in question is a provision in AB 2097 (Subdivision 65863.2(f), for anyone following along at home). It seems to exempt from this law any local requirements for electric vehicle charging installations in multifamily dwellings or commercial properties or to allow accessibility to persons with disabilities. In other words, if a local government had required not just parking (which would now be illegal under the new state law) but also parking specifically for EVs and for those with disabilities, what happens to that second part of the requirement?
The implications are significant. A city with such an EV or disability-access requirement on the books could argue that developers will still need to provide some minimum parking that has these features. In fact, they could use the requirements as a backdoor parking mandate where none otherwise now exists. Most people support EV charging and disabilities access requirements for parking spots, but doing so in the context of this legislation would clearly contradict the intent and plain language of the law.
When AB 2097 passed, it specifically deregulated parking mandates that typically come from local zoning codes, which have traditionally required developers to build a certain number of parking spaces for each housing unit and/or each 1,000 square feet of building area. EV and ADA parking requirements, however, usually come from a different section of local requirements, namely the building codes. Often these require that a certain percentage of any parking spots meet the additional standards of offering electric vehicle charging and/or accessibility. Crucially, building codes usually do not require that developers build any amount of parking—just that when they do, the parking meets certain standards.
In response, AB 2097 specifically preserved these building-code percentage standards in order to ensure that any parking provided advances sustainability and accessibility goals. But the provision was not meant to provide an easy out for local governments to circumvent the law’s fundamental goal of ending parking mandates near transit. Otherwise, cities could simply mandate a minimum number of parking spaces that must include electric vehicle charging (a percentage of which would by law also be handicap-accessible), and then AB 2097 would cease to have any effect at all.
So take a city that requires 30% of all required parking to have an EV charger. In that instance, they might argue that AB 2097 in fact only bans 70% of the parking mandate. Following that logic, if the city mandated 100% of spaces must include EV charging, then AB 2097 would effectively ban zero percent of parking mandates. That outcome would completely negate the purpose and impact of the new law.
The effect could be detrimental to infill projects. Imagine a small-lot developer who wouldn’t otherwise build any parking spots on a site under AB 2097. If cities now insisted that the developer provide EV charging and disabilities access, the developer would have to build parking where none was contemplated. That means providing two discrete accessible paths of travel from the street: one from the sidewalk and one from a parking facility that wouldn’t otherwise be there. This outcome would likely lead to developers continuing to orient buildings around parking spots rather than pedestrian, bicycle and transit access.
Instead, the only defensible read of the provision is that if a city requires a certain percentage of parking spots to have EV charging and to be accessible to those with disabilities, those percentages should still apply: but only if the developer decides to build any parking at all. If the developer opts out of on-site parking, then a percent of zero is zero. If the developer wants to provide only half the parking that would have been locally required under the old regime, then the number of EV and disabilities-accessible spots should be halved.
If there’s parking, then open it to EVs, those with disabilities, and other local requirements. But if none exists, local governments shouldn’t force requirements that run afoul of the law.
We’ll see if cities with these requirements try to exploit this provision. If so, it may take some state agency guidance to make this point, or worst case, clean-up legislation to clarify. Otherwise, one of California’s most important climate and land use bills could face some unfortunate headwinds on implementation.
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