New Tribal Consultation Process for Multi-Family Housing

Assembly Bill 168, now in effect, adds new requirements to the streamlined ministerial approval process for multi-family housing mandated in Senate Bill 35, which passed in 2017. AB 168 requires developers to submit a notice of intent to local agencies via a preliminary application before they may be able to proceed under SB 35. Next, AB 168 requires local agencies receiving preliminary applications to invite California Native American Tribes to consult with them regarding a proposed development’s potential effects on any tribal cultural resources. Significantly, AB 168 provides that this tribal consultation process is not subject to the California Environmental Quality Act.

Specifically, within 30 calendar days of receiving a preliminary application, a local agency must provide notice to those California Native American Tribes that are “traditionally and culturally affiliated with the geographic area” of the proposed development. AB 168 provides that the local agency may “contact the Native American Heritage Commission for assistance in identifying any California Native American Tribe.” Tribes receiving this notice have 30 calendar days to accept the invitation to engage in consultation.

After acceptance, a local agency must initiate consultation with each requesting tribe within 30 calendar days. The developer may attend the consultation(s) if they agree to respect the principles of AB 168 and if the consulting tribe approves the developer’s participation. However, a consulting tribe may revoke this approval at any time during the consultation process.

After consultation, a developer may submit an SB 35 ministerial application to a local agency only if

1. No noticed Tribe seeks, or fails to engage in, consultation,
2. No potential tribal cultural resource impact is identified or
3. If a potential tribal cultural resource impact is identified and the parties expressly agree to protect the resource.

A developer may not submit an SB 35 ministerial application if the proposed development site contains a tribal cultural resource that is listed on a national, tribal, state or local historic register and the parties to the consultation do not agree on whether the development will impact these resources, or a potential tribal cultural resource would be affected by the proposed development and the parties to the consultation are unable to document an enforceable agreement regarding their treatment.

The Office of Planning and Research has issued a Technical Advisory seeking to offer local agencies with additional guidance on AB 168.

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