Why This Comparison Matters
SB 35 (Wiener, Chapter 366, Statutes of 2017) and SB 423 (Wiener, Chapter 778, Statutes of 2023) both amend the same code section — Government Code § 65913.4 — and both create a ministerial approval pathway for qualifying multifamily housing near transit. But SB 423 did not replace SB 35. Instead, it amended and dramatically expanded § 65913.4, extending the sunset date, eliminating the coastal zone exclusion, and adjusting labor standards.
The practical effect: for projects submitted after January 1, 2024, the operative law is § 65913.4 as amended by SB 423. Understanding the differences matters for several reasons: litigation over applications submitted during SB 35's operative period (2017–2023) may still reference the original statutory text; coastal zone projects were excluded under SB 35 but included under SB 423; and the affordability and labor thresholds changed at the margins.
This reference compares both statutes provision by provision. Unless otherwise noted, all references to current law refer to § 65913.4 as amended by SB 423, operative January 1, 2024.
Statute Overview
| Provision | SB 35 (2017–2023) | SB 423 (2024–2036) |
|---|---|---|
| Bill / Chaptered | SB 35, Chapter 366, Statutes of 2017 | SB 423, Chapter 778, Statutes of 2023 |
| Code Section | Government Code § 65913.4 (enacted) | Government Code § 65913.4 (amended) |
| Effective Date | January 1, 2018 | January 1, 2024 |
| Sunset Date | January 1, 2026 (original) | January 1, 2036 |
| CEQA Treatment | Ministerial approval — categorically CEQA-exempt | Same — ministerial, CEQA-exempt |
| Approval Type | Ministerial — no public hearing, no discretionary review | Same |
Coastal Zone Applicability
| Provision | SB 35 | SB 423 |
|---|---|---|
| Coastal zone projects | Excluded entirely — no coastal zone projects qualified | Included — coastal zone projects qualify if they meet additional affordability thresholds |
| Coastal Permit (CDP) requirement | N/A (excluded) | SB 423 does not override the Coastal Act. Coastal projects still require a CDP in addition to ministerial SB 423 approval |
| Higher affordability threshold for coastal projects | N/A | RHNA-compliant cities: ≥ 60% affordable; non-compliant cities: same as general (≥ 2/3) |
| Practical impact | Coastal cities (Malibu, Santa Monica, Carlsbad, Santa Cruz, etc.) were fully exempt | Coastal cities must now process qualifying applications ministerially; dual-track with CDP required |
Affordability Thresholds
| Jurisdiction Status | SB 35 | SB 423 (Non-Coastal) | SB 423 (Coastal Zone) |
|---|---|---|---|
| RHNA compliant / Housing Element in compliance with HCD | ≥ 50% of units at specified affordability levels | ≥ 50% of units at specified affordability levels | ≥ 60% of units affordable |
| Not meeting RHNA / Housing Element non-compliant | ≥ 2/3 of units at specified affordability levels | ≥ 2/3 of units at specified affordability levels | ≥ 2/3 of units affordable |
Income targeting within the affordable unit set is specified by statute and may not be overridden by local requirements. The applicable affordability threshold depends on current HCD compliance status at the time of application — agencies must track compliance in real time.
Site Eligibility Criteria
| Eligibility Criterion | SB 35 | SB 423 |
|---|---|---|
| Zoning requirement | Zoned for residential or mixed-use with ≥ 2/3 residential square footage | Same |
| Transit proximity | Within ½ mile walking distance of major transit stop or high-quality transit corridor | Same |
| Urbanized area | Site must be in an urbanized area or urban cluster | Same |
| Very high fire hazard severity zone | Excluded | Excluded |
| Wetlands / riparian areas | Excluded | Excluded |
| Farmland (Prime, Unique, or of Statewide Importance) | Excluded | Excluded |
| Hazardous waste / contaminated sites | Excluded if listed on Department of Toxic Substances Control sites | Same |
| Tenant protection requirement | No housing occupied by tenants in past 10 years with rent control, low-income tenants, or Section 8, unless replaced 1-for-1 at same or lower rent | Same |
| Historic resources | Excluded if the project would demolish a historic structure | Same |
| Coastal zone | Excluded entirely | Included (with higher affordability floor) |
Labor Standards
| Labor Requirement | SB 35 | SB 423 |
|---|---|---|
| Skilled and trained workforce | Required for all qualifying projects | Same — all qualifying projects must use skilled/trained workforce for specified trades, or pay prevailing wages |
| Prevailing wages — threshold | Projects of 50 or more units | Same — 50+ unit projects must pay prevailing wages |
| Healthcare coverage | Not required | New under SB 423 — contractors on 50+ unit projects must provide qualifying healthcare coverage to workers |
| Labor certification | Applicant must certify compliance; agency not responsible for enforcement | Same — agency receives and retains labor certifications; enforcement is not a city obligation |
What Agencies May and May Not Impose
| Agency Action | SB 35 | SB 423 |
|---|---|---|
| Objective zoning and design standards | Permissible — agencies may apply objective standards | Same — objective standards may be applied if they do not preclude project meeting affordability/density minimums |
| Subjective design standards / "neighborhood character" review | Not permissible | Same — not permissible |
| Planning commission / public hearings | Not permissible | Same |
| CEQA documentation | Not permissible — ministerial approvals are CEQA-exempt | Same |
| Impact fees | Standard impact fees may be imposed (now subject to Sheetz scrutiny) | Same |
| Building permits / inspections | Required — ministerial approval does not waive building code compliance | Same |
Enforcement and Penalties
| Enforcement Mechanism | SB 35 | SB 423 |
|---|---|---|
| Enforcement statute | Housing Accountability Act (GC § 65589.5) | Same — HAA enforcement applies |
| Remedy for unlawful denial | Writ of mandate compelling approval | Same |
| Attorney fees | Awarded to prevailing applicant | Same — uncapped under SB 1037 (effective Jan 1, 2025) |
| Per-unit civil penalties | Prior HAA penalty structure (up to $10,000/unit) | SB 1037 tiered penalties apply: $10K (baseline) / $20K (repeat) / $50K (willful) per unit |
Decision Tree: Which Statute Applies to Your Project?
For applications submitted after January 1, 2024, the operative law is Government Code § 65913.4 as amended by SB 423. Use the following to determine eligibility:
- Is the site in California and zoned for residential or mixed use (≥ 2/3 residential square footage)? If no → does not qualify for either statute.
- Is the site within ½ mile walking distance of a major transit stop or high-quality transit corridor? If no → does not qualify.
- Is the site in an urbanized area or urban cluster? If no → does not qualify.
- Does the site meet all negative eligibility criteria (no fire hazard zone, no wetlands, no farmland, no occupied rent-controlled units, no historic demolition, no contaminated site)? If it fails any criterion → does not qualify.
- Is the site in the coastal zone?
- If yes, under SB 35 (pre-2024 applications): does not qualify.
- If yes, under SB 423 (post-Jan 1, 2024 applications): qualifies if affordability threshold is met (≥ 60% for RHNA-compliant cities; ≥ 2/3 for non-compliant). A CDP is also required in addition to ministerial approval.
- What is the jurisdiction's RHNA compliance status?
- HCD-compliant → 50% affordability floor applies (60% in coastal zone under SB 423).
- Non-compliant → 2/3 affordability floor applies (same in coastal zone).
- Does the project meet the applicable affordability threshold? If yes → entitled to ministerial approval under § 65913.4 (as amended by SB 423). Proceed with ministerial review; no public hearing, no CEQA.
Projects That May Qualify Under Both (Legacy Applications)
For applications submitted between January 1, 2018 and December 31, 2023 — the operative period of SB 35 before SB 423 took effect — the applicable law is § 65913.4 as it existed under SB 35. Post-January 1, 2024, only § 65913.4 as amended by SB 423 applies.
Where litigation arose from a pre-2024 application, the pre-SB 423 statutory text governs the analysis. Courts evaluating those applications will apply the coastal zone exclusion and pre-SB 423 labor standards. City attorneys defending actions from that period should ensure they are working from the operative text at the time of the denial, not the current amended version.
Key Takeaway for Planning Departments
The practical changes SB 423 made that require immediate operational attention:
- Coastal zone: The SB 35 exemption no longer applies. All qualifying coastal zone projects submitted after January 1, 2024 must be processed ministerially. Agencies in coastal cities that continued applying the SB 35 coastal exclusion after January 1, 2024 are exposed to HAA liability for each such application.
- Healthcare requirement: Contractors on 50+ unit projects must now certify qualifying healthcare coverage. Update labor certification intake forms accordingly.
- Sunset extended to 2036: The SB 35 sunset (originally January 1, 2026) no longer applies. Ministerial approval pathways under § 65913.4 are operative through January 1, 2036.
Is your city still applying the SB 35 coastal zone exclusion to applications received after January 1, 2024? Legislaide's Code Statutory Analysis identifies exactly these kinds of process gaps — before they become HAA litigation.
Published April 6, 2026 by Legal Team at Legislaide.