"Ministerial or discretionary, and under which statute?"
Two worlds, and why the choice precedes any filing
Entitlement converts a parcel's theoretical zoning capacity into a legally vested right to build a specific building. In California the process splits into two worlds that share almost nothing.
| Discretionary | Ministerial | |
|---|---|---|
| Decision-maker | Planning Commission or City Council, on findings | Planning staff, applying objective standards |
| CEQA | Applies — CEQA attaches only to discretionary approvals (Pub. Res. Code § 21080(a), (b)(1)) | Does not apply at all — outside CEQA's scope |
| Public hearings | Allowed, capped at 5 (Gov. Code § 65905.5) | Zero required |
| Appeal | To Council, then court; a CEQA writ petition plus appeals commonly runs 4–5 years to final | No discretionary appeal; no environmental record to attack |
| Realistic duration | 12–36 months | 3–9 months |
The duration figures are practitioner estimates, not measured figures — nobody has published realized entitlement duration by pathway (see "What is contested, draft, or unverified").
The election has to be made before you submit anything, because most of the streamlining statutes freeze the applicable rules as of the date of submittal or preliminary application. You cannot watch how the first review goes and then pick.
Order of operations
| Step | Action |
|---|---|
| 1 | Run the Government Code § 65913.4(a)(6) exclusion set first (see table below) — the identical set is reused by both AB 2011 articles, Public Resources Code § 21080.66, and AB 1633. Run it once, use it four times. |
| 2 | Pull the jurisdiction's HCD SMAP determination. That one field decides whether SB 423 is available at all, and at 10% or 50%. |
| 3 | Pull housing-element compliance status. Builder's Remedy eligibility turns on the jurisdiction lacking a substantially compliant element on the date the application was deemed complete. |
| 4 | Queue the verifications no dataset answers (see table below). |
| 5 | Land-use counsel writes the eligibility memo — typically a 5 to 15 page letter that the tax-credit application literally relies on. |
| 6 | File the SB 330 preliminary application to vest the rules. |
| 7 | Serve tribal notice. On SB 423 the notice of intent is a § 65941.1 preliminary application, so steps 6 and 7 collapse into one filing. |
| 8 | If the site is in a low- or moderate-resource area or an area of high segregation and poverty on the CTCAC/HCD Opportunity Map, the city must hold a public meeting within 45 days of the notice of intent, before the full application is filed. |
HCD's SMAP dashboard has updated daily since 6/30/2025; the determination methodology PDF was updated 06/30/2026.
| Excluded feature | Exception |
|---|---|
| Coastal zone | — |
| Prime farmland or farmland of statewide importance | — |
| Wetlands | — |
| Very high fire hazard severity zone or state responsibility area | Unless fire mitigation under Pub. Res. Code §§ 4291, 4290 and CBC Chapter 7A applies |
| Cortese-listed hazardous waste site (§ 65962.5) | Unless closed for residential use |
| Alquist-Priolo earthquake fault zone | Unless seismic code compliance |
| FEMA 100-year special flood hazard area | Unless LOMR or NFIP compliance |
| FEMA regulatory floodway | Unless a no-rise certification |
| NCCP/HCP conservation lands | — |
| Protected-species habitat | — |
| Conservation easements | — |
Note the shape of most entries — excluded unless mitigated. Flattening that to a boolean is the correctness error that matters here.
| Item | Detail |
|---|---|
| Tenant occupancy history | Ten-year lookback on the parcel |
| Commercial-corridor right-of-way width | — |
| Principally permitted use | Whether office, retail, or parking is a principally permitted use in the zone — not a conditional one |
| Industrial adjacency | Whether an adjoining parcel is more than one-third dedicated to industrial use — tests current use, most recent permitted use within three years, and pre-2022 general plan designation |
The pathways, and what each one actually gates on
| Test | Requirement |
|---|---|
| Site | Multifamily, at least 2 units; city's boundaries include an urbanized area or urban cluster; at least 75% of the site perimeter adjoins parcels developed with urban uses (parcels separated only by a street count as adjoining); zoned or designated residential or residential mixed-use with at least two-thirds of the development's square footage residential |
| Affordability — 10% jurisdiction | 10% of base units at 50% AMI or below (rental) |
| Affordability — 50% jurisdiction | 50% of base units at 80% AMI or below |
| Affordability — 9-county Bay Area alternative | 20% of units at 100% AMI or below, with an 80% AMI average |
| Affordability exemption | Projects of 10 units or fewer are exempt from the affordability requirement entirely |
All percentages compute on base units, before density bonus. Amended by SB 597 (Stats. 2025, Ch. 774), eff. 1/1/2026; sunset 1/1/2036 (§ 65913.4(v)). Affordability is set by HCD's determination, not by the developer.
For a 100%-affordable LIHTC developer, SB 423's affordability test is trivially satisfied — which means its real gates are the site exclusions, the labor package, and tribal consultation.
| Article 2 (LIHTC path) | Article 3 (mixed-income path) | |
|---|---|---|
| Affordability | 100% of units to lower income, 55-year covenant, rents at CTCAC limits | Mixed income |
| Zone test | Site in a zone where office, retail, or parking is a principally permitted use | Same zone test, plus a commercial-corridor or campus test |
| Commercial-corridor frontage | Not required | Required — at least 50 ft of frontage on a corridor (non-freeway street with a 70–150 ft right of way, § 65912.101(c)) — or the site sits in a campus development zone |
| Site size cap | None | 20 acres (100 acres for a regional mall) |
Two articles, and most commentary conflates them. Amended by AB 893 (Stats. 2025, Ch. 500), eff. 1/1/2026; sunset 1/1/2033.
| Site condition | Metropolitan | Non-metropolitan |
|---|---|---|
| Under 1 acre | 30 du/ac | 20 du/ac |
| 1 acre or more, corridor under 100 ft right of way | 40 du/ac | 30 du/ac |
| 1 acre or more, corridor 100 ft or more right of way | 60 du/ac | 50 du/ac |
| Very low VMT area, within a half mile of a major transit stop, or campus development zone | 80 du/ac | 70 du/ac |
Or the local maximum, whichever is greater. A floor applies for applications determined consistent on or after January 1, 2027: the project must be built at 75% or more of the applicable density.
| Tenancy length | Relocation payment |
|---|---|
| 1–5 years | 6 months' rent |
| 5–10 years | 9 months' rent |
| 10–15 years | 12 months' rent |
| 15–20 years | 15 months' rent |
| 20+ years | 18 months' rent |
Applies to qualifying independent tenants with 20 or fewer employees and under $1M average gross receipts; 3 months' rent if they decline to use the funds for relocation. A real, quantifiable cost most models miss.
| Trigger | Requirement |
|---|---|
| Freeway within 500 feet | MERV-16 central HVAC with intakes facing away from the freeway; no freeway-facing balconies |
| Active oil or gas extraction or refining | No housing permitted within 3,200 feet |
| Attribute | Requirement |
|---|---|
| Eligible land | Owned on or before January 1, 2024 by a religious institution or an independent institution of higher education |
| Affordability | 100% lower income; up to 20% moderate; up to 5% for the institution's staff; at CTCAC rents |
| Approval | Use by right. The statute states the development "is not a 'project' for purposes of Division 13" — an unusually clean CEQA exclusion |
| Density | § 65583.2(c)(3)(B) default in residential zones; 40 du/ac in non-residential zones |
| Height bonus | Plus one story or 11 feet above the otherwise-applicable height |
| Sunset | January 1, 2036 |
| Attribute | Requirement |
|---|---|
| Applicability | Urban transit counties only — a county with more than 15 passenger rail stations (§ 65912.156(q)) |
| Operative date | Not operative against a local agency until July 1, 2026 unless the agency adopted a compliant ordinance or TOD alternative plan first; not operative in unincorporated county areas until the 7th RHNA cycle |
| Tier 1 standards (within a quarter mile) | 75 feet of height, 120 du/ac, 3.5 FAR |
| Minimum project size | At least 5 units, at least 30 du/ac, average unit size at or under 1,750 net habitable square feet |
Added by Stats. 2025, Ch. 512; already amended by SB 722 (Stats. 2026, Ch. 100), eff. 7/16/2026. The newest and most volatile pathway — do not hardcode it.
| Attribute | Requirement |
|---|---|
| Availability | Only where the jurisdiction lacked a substantially compliant housing element on the date the application was deemed complete |
| Affordability menu | 7% ELI, or 10% VLI, or 13% lower income, or 10 units or fewer on a site under one acre at 10 du/ac or more — alternatively 100% lower income or 100% moderate |
| Density cap | Greatest of 150% of the § 65583.2(c)(3)(B) default, three times the general plan or zoning density, or the housing-element density |
| Density bump | Plus 35 du/ac if any part of the site is within a half mile of a major transit stop, in a very-low-VMT area, or in a high or highest resource census tract on the CTCAC/HCD Opportunity Map |
| Process | No general plan amendment, rezone, or legislative approval required; picks up two concessions on top of Density Bonus Law |
Density Bonus Law (Government Code Section 65915) is an overlay — not a pathway and not a CEQA exemption. It modifies density and standards on whatever pathway you elected.
| Benefit | Detail |
|---|---|
| Density bonus | 80% |
| Maximum density control | None at all, within a half mile of a major transit stop or in a very-low-VMT area in a designated county |
| Concessions | 5 |
| Waivers of development standards | Unlimited in number, separate from concessions, with the city bearing the burden to deny |
| Height bonus | Plus 3 stories or 33 feet near a major transit stop |
§ 65915(q) rounds each component of the density calculation up separately; § 65915(r) requires liberal interpretation in favor of maximum units.
Where the deadlines and clocks come from
The statutory clocks are self-executing, and the remedies attached to them are free options that go unclaimed constantly.
| Trigger | Clock |
|---|---|
| SB 423 (§ 65913.4(c), (d)) | 60 days consistency at 150 units or fewer, 90 days above 150, 30 days on resubmittal; design review 90 days at 150 or fewer and 180 days above; missing the deadline means the project is deemed consistent (§ 65913.4(c)(2)) |
| AB 2011 (§ 65912.124(a)) | Same 60/90/30 consistency clock, then adds 60 or 90 days to actually approve after the consistency finding |
| Supportive housing / AB 2162 (§ 65653) | Completeness in 30 days; then 60 days at 50 units or fewer and 120 days above 50 |
| Permit Streamlining Act (§ 65950(a)) | 60 days if CEQA-exempt; 60 days after a negative declaration; 180 days after EIR certification; 30 days if exempt under Pub. Res. Code § 21080.66 |
| HAA inconsistency findings (§ 65589.5(j)(2)) | If the city does not put its inconsistency findings in writing within 30 days (150 units or fewer) or 60 days (above 150) of completeness, the project is deemed consistent; courts must order compliance within 60 days and shall award attorney's fees (§ 65589.5(k)) |
| Pathway | Clock |
|---|---|
| SB 423 (§ 65913.4(b)) | City notifies affiliated tribes within 30 days of the notice of intent; tribes have 30 days to accept; city commences scoping within 30 days of acceptance |
| Pub. Res. Code § 21080.66 | Notice within 14 days of the application being deemed complete; tribes have 60 days to accept; agency initiates within 14 days |
| Item | Detail |
|---|---|
| What locks | File the enumerated items plus the processing fee; the ordinances, policies, standards, and fees in effect that day are locked |
| Full application deadline | 180 days after filing |
| Cure period | 90 days to cure missing information, or the preliminary application expires |
| What breaks the vest | Revising unit count or square footage by 20% or more, excluding density-bonus additions |
| Fee and exaction estimate | Can request a preliminary fee and exaction estimate under § 65941.1(b), due back within 30 business days |
| Condition | Term |
|---|---|
| Public investment in housing affordability beyond tax credits, and 50% or more of units at 80% AMI or below | Does not expire |
| Otherwise | 3 years, extendable once by 1 year |
| Modification requests | Approved within 60 days, 90 with design review |
| New objective standards apply only if | Square footage grows 15% or more, or units drop 15% or more (or 5% with a health or safety impact) |
A 4% LIHTC plus soft-loan deal qualifies for non-expiration; a credits-only deal does not.
| Milestone | Clock |
|---|---|
| Complete or incomplete determination | 15 business days |
| Approval | 30 business days at 25 units or fewer; 60 business days above 25 |
| Appeals | 60 or 90 business days |
These clocks are widely ignored and rarely enforced — which is exactly why they are worth tracking.
NEPA is not on this list, and that is a gap. A ministerial state approval eliminates CEQA. It does not eliminate the federal review triggered by HUD funds — HOME, CDBG, HTF, PBV, 221(d)(4) or 223(f) insurance. NEPA and the 24 CFR Part 58 environmental review run in parallel with CEQA and are frequently the later critical path. The research corpus behind this library is thin here: the timeline domain document never mentions NEPA at all, and Section 106 review is not covered anywhere. Treat the federal overlay as an unmapped critical path, not an absent one.
The labor package rides on the pathway, not the site
Prevailing wage is a property of the entitlement pathway and the capital stack. A site screen structurally cannot answer whether this is a prevailing-wage deal; the pathway election can.
| Trigger | Requirement |
|---|---|
| More than 10 units | Prevailing wage under Labor Code §§ 1773 and 1773.9, including on non-public-work portions, with monthly reporting, Labor Commissioner enforcement within 18 months of completion, $200 per worker per day penalties, and $10,000 per month reporting penalties |
| 50 units or more | Adds apprenticeship program participation and healthcare expenditures |
| Buildings over 85 feet | Skilled and trained workforce (Pub. Contract Code § 2601) — exempted where 100% of the units, exclusive of a manager's unit or units, are dedicated to lower income households (§ 65913.4(a)(8)(A)(ii)(II)(III)); a multicraft PLA satisfies the requirement in lieu |
The skilled-and-trained exemption is materially valuable and routinely overlooked.
| Trigger | Requirement |
|---|---|
| All AB 2011 projects | Prevailing wage, no unit threshold |
| 50 units or more | Adds apprenticeship and healthcare expenditure requirements |
Article 4 is expressly non-severable under § 65912.140 — if it falls, the whole chapter falls.
| Pathway | Requirement |
|---|---|
| SB 4 | Prevailing wage; 50 units or more picks up the AB 2011 Article 4 standards |
| Pub. Res. Code § 21080.66 | Prevailing wage on 100%-lower-income projects; AB 2011 Article 4 standards apply to buildings over 85 feet and to 50-unit-or-larger projects in San Francisco |
| SB 79 | Buildings over 85 feet pick up § 65913.4(a)(8)-style standards |
Do not put a cost delta on this. The source research found no primary or credible published statewide figure for the prevailing-wage premium on an otherwise private project; practitioner claims of a 10 to 25 percent hard-cost delta could not be verified and should not be asserted. Model the trigger, let the estimator carry the number.
The four ways out of CEQA, ranked by litigation exposure
| Rank | Path | Requirements | Citation |
|---|---|---|---|
| 1 | Ministerial approval — no CEQA at all | What SB 423, AB 2011, SB 4, and AB 2162 supportive housing deliver. Under AB 2011 the consistency determination is expressly "not a project" under Pub. Res. Code § 21065 (§ 65912.124(c)), and density-bonus concessions do not convert the approval back to discretionary (§ 65912.124(f)(3)). Strongest position available: there is no environmental record to litigate. | Pub. Res. Code § 21080(b)(1) |
| 2 | Statutory exemption | Site of 20 acres or fewer, or 4 acres or fewer for a builder's-remedy project; within an incorporated municipality or Census urban area; meets one of four urban-use tests; consistent with general plan and zoning, with DBL concessions not breaking consistency; at least 50% of the § 65583.2(c)(3)(B) default density; satisfies the § 65913.4(a)(6) exclusions; no registered-historic demolition; no transient lodging. Because it is statutory, it is not subject to the CEQA Guidelines § 15300.2 exceptions — a major litigation-risk improvement over Class 32. | Pub. Res. Code § 21080.66 |
| 3 | Categorical exemption — Class 32 | Consistent with general plan and zoning; within city limits on 5 acres or fewer substantially surrounded by urban uses; no value as habitat for endangered, rare or threatened species; no significant traffic, noise, air-quality or water-quality effects; adequate utilities and services. Remains subject to the § 15300.2 exceptions — cumulative impacts, unusual circumstances, scenic highways, hazardous-waste sites, historical resources — which is precisely the hook most CEQA petitions use. | CEQA Guidelines Class 32, 14 CCR § 15332 |
| 4 | § 21159.24 infill exemption | Narrow and rarely usable: 4 acres or fewer, 100 units or fewer, within a half mile of a major transit stop, community-level environmental review certified within the last 5 years, plus an affordability set-aside. Retains the unusual-circumstances, changed-circumstances and new-information outs. | Pub. Res. Code § 21159.24 |
The 2025 statutory exemption (path 2) exists largely to close the litigation door that Class 32's § 15300.2 exceptions leave open. Path 2 was added by AB 130 (Stats. 2025, Ch. 22) and amended by SB 158 (Stats. 2025, Ch. 650), effective 10/11/2025.
The CTCAC hook: 4 CCR Section 10325(f)(4)
This is why the pathway election cannot be deferred until after the tax-credit application. Under 4 CCR Section 10325(f)(4), "Local approvals and Zoning," applicants must show at application that the project is zoned for the intended use and has obtained all applicable local land use approvals which allow the discretion of local elected officials to be applied. A 30-day appeal period may run past the due date.
The documentation must describe the local approval process, the applicable approvals, and whether each required approval is by right, ministerial, or discretionary. And — this is the commercially significant part — in lieu of a local land use approval, projects that qualify for by-right or ministerial approval may submit confirmation of eligibility from HCD's Housing Accountability Unit or a third-party attorney letter explaining how the project complies with the applicable requirements.
"Local land use approvals" expressly excludes design review, initial environmental study assessments, variances, and development agreements.
So the tax-credit application demands a structured, cited streamlining-eligibility narrative, and explicitly accepts an attorney letter in place of an entitlement. The pathway election is not just a land-use decision — it is a threshold document in the credit application, and the attorney memo you commission in Phase 3 is the artifact that satisfies it.
What is contested, draft, or unverified
Every pathway above changed within the last 24 months. SB 597 (2025) moved the SB 423 and SB 4 sunsets to 2036. AB 893 (2025) amended AB 2011. SB 158 (2025) amended Public Resources Code Section 21080.66. SB 722 amended SB 79 on July 16, 2026. A pathway analysis that silently uses stale thresholds is worse than no analysis. Every rule you rely on should carry an as-of date, a statute citation, and a last-verified stamp.
**HCD's AB 2011 Guidelines under Section 65912.102 are still published as Draft.** Several real ambiguities — default height for Article 2, how concessions interact with the height table — are addressed only there. Anything built on those guidelines is built on draft guidance.
**SB 79's urban-transit-county list is derived, not published.** The "more than 15 passenger rail stations" definition is statutory. The resulting 10-county list circulating in law-firm and ABAG summaries — Alameda, Contra Costa, Los Angeles, Orange, Sacramento, San Bernardino, San Diego, San Francisco, San Mateo, Santa Clara — was not counted against the statute in this research. Riverside and Imperial are reported as outside it. Verify before relying. Separately, whether SB 722 changed SB 79 substantively beyond the amendments visible in the codified text has not been diffed against the bill.
**The SB 423 non-expiration test is undefined at its load-bearing term.** Section 65913.4(g)(1)(A) turns on "public investment in housing affordability, beyond tax credits." Whether a tax-exempt bond allocation counts as beyond tax credits, and whether a local soft loan does, is unresolved. This determines whether a 3-year clock runs against your approval while the capital stack assembles.
**Two rule texts in this guide were not read from the primary source.** The Class 32 criteria at 14 CCR Section 15332 were confirmed from multiple agency checklists rather than from the CCR itself. Government Code Section 66300.6, the protected-unit replacement rule, was described from ABAG and law-firm summaries; the bedroom-equivalence and lookback provisions should be read from the statute before you rely on them.
**Realized entitlement duration by pathway does not exist as data.** The statutory clocks are primary; the 3-to-9-month and 12-to-36-month ranges are practitioner folklore. HCD's annual progress reports tell you a permit issued in a year, not that the application took 31 months, and most city permitting portals have no public API. Nobody can currently tell you, from evidence, how long an SB 423 application actually takes in a given city.
**AB 2011 uptake is thin and possibly stale.** Roughly 23 projects and 5,832 units were submitted from July 2023 through 2024 per Terner. No verified 2025–2026 figure was found. If uptake stayed that low, it bears on how much weight Article 3 deserves in your analysis at all.
Where this goes wrong
- Tribal consultation stalemate. The site is clean on every GIS layer, a tribe requests consultation, and the parties never document an enforceable agreement. HCD's guidance is that the developer may not proceed if there is a registered TCR on site, if the parties have not documented an enforceable agreement on treatment, or if they disagree on whether a potential TCR would be affected. Typically discovered four to eight months after site control, after site-work spend. No dataset predicts it.
- Screening a site as "AB 2011-eligible" off a transit signal, then learning at architect kickoff that the street right of way is 62 feet — not a commercial corridor — or that office, retail and parking are conditional rather than principally permitted uses. Article 3 collapses; Article 2 may survive if the deal is 100% affordable.
- The 10-year tenant lookback. Section 65913.4(a)(7)(A)(iii) and Section 65912.121(h)(1)(C) disqualify any site with housing occupied by tenants within the past 10 years — including one single-family house sitting on a large commercial-adjacent parcel. Found in diligence, or worse, after submittal.
- Industrial adjacency. AB 2011 excludes a site adjoined to any site more than one-third dedicated to industrial use, and parcels separated only by a street count as adjoining. A single across-the-street warehouse kills eligibility.
- A vacant AB 2011 site in a very high fire hazard severity zone. Sections 65912.111(h)(2) and 65912.121(j)(2) are absolute for vacant sites — there is no mitigation cure, unlike SB 423 where CBC Chapter 7A compliance rescues the site.
- Losing the SB 330 vest. Design evolution pushes unit count or square footage 20% or more off the preliminary application and the fee and standard freeze evaporates; or the 180-day full-application deadline, or the 90-day cure, quietly lapses.
- A Class 32 exemption defeated under CEQA Guidelines Section 15300.2. A neighbor asserts unusual circumstances or a historical resource, the exemption is challenged, and the project spends two to four years in a writ proceeding.
- The approval expiring before the capital stack closes. SB 423 approvals run 3 years plus one 1-year extension unless the project has public subsidy beyond tax credits and at least 50% of units at 80% AMI or below. A 9% deal that misses two rounds can time out.
- Builder's Remedy timing. Eligibility depends on the housing element being out of compliance on the date the application was deemed complete. Cities certify housing elements on short notice and the window closes without warning.
- CTCAC application rejected on Section 10325(f)(4). The entitlement narrative is inadequate, or the discretionary approval is not final because the 30-day appeal window has not closed. A full cycle lost — 6 to 12 months.
- Post-entitlement permit drift. Entitlement is granted and then plan check, utility will-serve, tree removal, grading and encroachment permits consume another 9 to 18 months. The Section 65913.3 clocks that would prevent this are widely ignored and rarely enforced.
- Treating a ministerial state approval as the end of environmental review. Where HUD funds are in the stack, NEPA and the 24 CFR Part 58 review run in parallel and are frequently the later critical path.
- HUD
- LIHTC
- State QAPs
- IRS § 42
- Housing Finance Agencies