The Media Missed the Perilous Side of Senate Bill 9
Erroneous Report from Terner Center, Berkeley
As wildfires raged in 2021, an erroneous July report from Berkeley’s Terner Center, “Will Allowing Duplexes and Lot Splits on Parcels Zoned for Single-Family Create New Homes?” led the media to misreport that SB 9 density wouldn’t apply to homes in evacuation-prone, high fire severity zones. Terner Center Director Ben Metcalf, in an email to Livable California, said SB 9 projects aren’t allowed in fire severity zones unless a city “proactively allows for them or has specifically adopted a fire hazard mitigation measure.” This is incorrect. Terner is looking at an old law, struck in 2018. Cities no longer have that power. Metcalf said SB 9 has “ambiguity” and isn’t “cut and dry on fire hazard severity zones.” This is incorrect. In fire severity zones, SB 9 builders must only follow rules they already must follow in Chapter 7A of the Building Code. Thus SB 9 density is allowed in fire severity zones. Terner Center’s errors nevertheless spread statewide:
• The California Senate Democratic Caucus website mistakenly says SB 9 "excludes the provisions of the bill being used in very high fire hazard severity zones." Its Myth Vs. Fact section wrongly claims SB 9 “excludes very high fire hazard severity zones.”
• Aug.18, CalMatters misreports, “fire hazard zones ... would be barred from development.”
• Aug. 20, Mercury News repeats, “fire hazard zones ... would be barred from development.”
• Aug. 22, Los Angeles Times editorial board endorses SB 9, erroneously stating “The bill wouldn’t apply in ... certain high fire-risk areas.”
• Sept. 7, L.A. Times misreports, “land at high risk of fire" is "specifically exempt" from SB 9.
• Gov. Newsom’s signing of SB 9 in September was followed by more misreporting:
• Sept. 16, San Francisco Examiner, “grants exceptions to ... fire zones.”
• Sept. 17, Slate, “exemptions for ... fire hazard zones.”
• Oct. 3, Bloomberg Opinion, “some exceptions, such as ... fire-prone areas.”
SB 9's Impact in Fire Zones Was Hiding in a Loophole Why did the 2021 legislative hearings fail to explore SB 9’s intent to allow density in severe fire zones? The loophole is buried deep in a Government Code (existing state law) incorporated into SB 9. The loophole language seems to exclude severe fire zones from SB 9 density, but in fact does the opposite. The loophole can be found online at Government Code 65913.4, paragraph (6), sub-paragraph (D) of subdivision (a). The sub-paragraph (D) allows development in fire severity zones if builders merely abide by building standards they must already follow. The first sentence in “sub-paragraph (D)” says development is banned in fire severity zones. The second sentence undoes that safeguard: it “does not apply” where “fire mitigation standards” apply. And those fire mitigation standards are already applied in Chapter 7A of the state Building Code.