BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 602
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: Feuer
VERSION: 6/21/10
Analysis by: Mark Stivers FISCAL: No
Hearing date: June 29, 2010
SUBJECT:
Statute of limitations on housing element challenges
DESCRIPTION:
This bill restores the ability of an entity to submit a notice
citing deficiencies in a city's or county's housing element at
any time during the housing element planning period and then
file a challenge within one year if city or county fails to
address the deficiencies within 60 days.
ANALYSIS:
The Planning and Zoning Law requires cities and counties to
prepare and adopt a general plan, including a housing element,
to guide the future growth of a community. Following a
staggered statutory schedule, cities and counties located within
the territory of a metropolitan planning organization (MPO) must
revise their housing elements every eight years, and cities and
counties in rural non-MPO regions must revise their housing
elements every five years. These five- and eight-year periods
are known as the housing element planning period.
Before each revision, each community is assigned its fair share
of housing for each income category through the regional housing
needs assessment (RHNA) process. A housing element must
identify and analyze existing and projected housing needs,
identify adequate sites with appropriate zoning to meet its
share of the RHNA, and ensure that regulatory systems provide
opportunities for, and do not unduly constrain, housing
development. The Department of Housing and Community
Development (HCD) reviews both draft and adopted housing
elements to determine whether or not they are in substantial
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compliance with the law.
The Planning and Zoning Law and the Subdivision Map Act also
includes a number of sections governing zoning and entitlements
specifically related to housing, including:
The Housing Accountability Act, which requires a city or
county to make one or more specified findings in order to
disapprove a particular housing development.
A provision requiring cities and counties, when adopting an
ordinance which limits the number of housing units which may
be constructed on an annual basis, to make findings as to the
public health, safety, and welfare benefits that justify
reducing the housing opportunities of the region.
Density bonus law, which requires cities and counties to grant
a developer a density bonus, incentives, and concessions when
the developer proposes to include specified percentages of
affordable housing within a development.
The Least Cost Zoning Law, which requires cities and counties
to designate and zone sufficient vacant land for residential
use with appropriate standards to meet housing needs for all
income categories and to contribute to producing housing at
the lowest possible cost.
A requirement that, when determining whether to approve a
tentative subdivision map, a city or county shall apply only
those ordinances, policies, and standards in effect as of the
date the developer's application is deemed complete.
Prior to a recent court decision, it was understood that current
law allowed a party to challenge the adequacy of a city's or
county's housing element at any time during a planning period,
provided that the challenger brought the action "in support of
or to encourage or facilitate the development of housing that
would increase the community's supply of [affordable] housing."
The challenging party was required first to serve the city or
county with a notice identifying the deficiencies in the housing
element. After 60 days or the date on which the city or county
took final action in response to the notice, whichever occurred
first, the challenging party had one year to file the action in
court. This process and statute of limitations also applied to
actions brought pursuant to the housing-related statutes listed
above.
In 2006 Urban Habitat Program brought suit to challenge the City
of Pleasanton's housing policies, including the city's annual
cap on housing permits and the city's cap on the aggregate
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number of permissible housing units, both of which Urban Habitat
claimed were insufficient to allow the city to meet its RHNA
obligation. In 2008, the First District California Court of
Appeals issued an unpublished decision in the case of Urban
Habitat v. Pleasanton allowing the case to proceed with respect
to some causes of action, but ruling that the challenge to the
housing element itself was time-barred. The court stated:
Although the statute does not specify the time within which
[a deficiency] notice must be given, it is our conclusion
that the statute must be interpreted as containing a time
limit within which this requirement must be met? In sum, a
party bringing a challenge governed by section 65009,
subdivision (d), has 90 days from the date a legislative
action is taken or approval is given to notify the local
land use authority of any claimed deficiencies in such an
action or approval. Its claim then accrues 60 days after it
gives this notice.
In other words, instead of being able to initiate a challenge to
a deficient housing element at any time during the planning
period, housing advocates and other interested parties may now
only initiate such a challenge by submitting a deficiency notice
within 90 days of the housing element's adoption.
This bill states the intent of the Legislature to modify the
portion of the Urban Habitat opinion relating to the housing
element statute of limitations and restores the ability of
parties bringing a housing element action "in support of or to
encourage or facilitate the development of housing that would
increase the community's supply of [affordable] housing" to send
a 60-day deficiency notice at any time after the adoption,
amendment, or revision of a housing element. The bill further
provides that after 60 days or the date on which the city or
county takes final action in response to the notice, whichever
occurs first, the challenging party has one year to file the
action in court. The bill does not alter the statute of
limitations for actions brought under the other housing-related
statutes listed above.
COMMENTS:
1.Purpose of the bill . According to the author, the appellate
court simply erred in barring a housing element challenge if
the deficiency notice is served more than 90 days after
adoption of the element. As indicated in the 1983 Senate
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committee and floor analyses for the bill that enacted this
language, the law's lack of a deadline for serving such
notices was intentional, not an omission. This bill restores
the longstanding ability of parties to bring an action to
enforce housing element law at all relevant times during the
planning period.
Unlike a decision related to an individual project, a housing
element is a living document meant to guide current and future
decisions. Where deficiencies exist, it is important that
they be correctable at all times during the planning period.
There are also logistical reasons for an ongoing enforcement
period for housing elements. The state does not generally
enforce housing element law. Enforcement is left to voluntary
compliance by local governments with the possibility of
citizen enforcement actions, most often by affordable housing
advocacy groups. There are not many of these nonprofit
organizations in the state, and their resources are spread
very thin. They simply do not have the ability to monitor the
adoption of all the state's housing elements in real time and
immediately file deficiency notices. Moreover, most of these
groups are local and faced with the fact that all
jurisdictions within a region adopt their housing elements
around the same time. The area covered by the Southern
California Association of Governments, for instance, includes
200 jurisdictions. As long as housing element law relies on
citizen actions for enforcement and the resources of nonprofit
citizen groups are limited, effective enforcement requires
allowing a meaningful opportunity to raise alleged violations
during the time when the housing element is in force.
2.A brief history of the statute . The statutory language
interpreted by the court and at issue in this bill was added
to statute by AB 998 (Waters), Chapter 1138, Statutes of 1983,
a bill sponsored by the League of California Cities and the
California Building Industry Association. AB 998 created a
short statute of limitations period for land use decisions
generally but provided a specific exception to protect the
ability to challenge deficient housing elements. The Senate
Housing and Land Use Committee and the Senate Third Reading
analysis of the bill stated that the bill:
Specifies that for challenges in support of low- and
moderate-income housing requirements, the petitioner shall
notice local government 60 days prior to filing action.
The [one-year] statute of limitations then begins on the
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first day the legislative body fails to act.
In the intervening 25 years prior to the Urban Habitat ruling,
housing advocates filed and successfully settled at least ten
cases in which the 60-day deficiency notice was sent more than
90 days after adoption of the city's or county's housing
element. In none of these cases was the timeliness on the
advocates' suit contested. Likewise, six bills amended other
portions of this statute during those intervening years, and
there was never any controversy surrounding the lack of a
deadline for housing advocates to serve a deficiency notice
nor any attempt to change the statute in this regard.
3.Current level of housing element compliance . According to
HCD's website as of June 7, 2010, only 46 percent of cities
and counties have adopted an HCD-approved housing element for
the current planning period that began in 2005 for the San
Diego region, 2008 for the Southern California, Fresno, Kern,
and Sacramento regions, and the summer of 2009 for the
remaining areas of the state.
4.Unlocking the private market . The purpose of housing element
law is to create opportunities for the private housing market
to function. Builders cannot build without access to
appropriately zoned land, and current land use plans in many
cities and counties in California fail to provide sufficient
opportunities to accommodate projected population growth. The
San Diego Association of Governments' Regional Comprehensive
Plan describes this typical California paradox in the
following way:
Under current plans and policies, more than 90 percent of
[the San Diego region's] remaining vacant land designated
for housing is planned for densities of less than one home
per acre, and most is in the rural back country areas
dependent upon scarce groundwater supplies. And of the
remaining vacant land planned for housing in the 18
incorporated cities, only about seven percent is planned
for multifamily housing. When taken together, the current
land use plans of the 19 local jurisdictions do not
accommodate the amount of growth anticipated in our region.
SANDAG's population forecast, which reflects the current
adopted local land use plans in the region, projects that
while population will increase by 37 percent by 2030,
housing will grow by just 30 percent. The forecast shows
that if local plans are not changed, demand for housing
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will continue to outpace the supply, just as it does today.
Housing element law addresses this problem directly by
requiring cities and counties to zone land at appropriate
densities to accommodate the projected housing needs of all
income groups and to remove constraints that prevent such
sites from being developed at the allowed densities. Cities
and counties, however, are not required to build housing
because that is the role of private developers. The law holds
cities and counties accountable only for that which they
control: zoning and land use entitlements. Without the
ability to enforce housing element law, the market's ability
to meet housing demand may well remain locked up.
5.Key to AB 32/SB 375 implementation . In 2006, the Legislature
enacted AB 32 (Nu?ez), Chapter 488, the Global Warming Act of
2006, which requires the Air Resources Board to establish a
statewide greenhouse gas emissions limit such that by 2020
California reduces its greenhouse gas emissions to the level
they were in 1990. One of the key strategies to achieve the
AB 32 mandate is to promote more compact forms of development
in California. In 2008, the Legislature enacted SB 375
(Steinberg), Chapter 728, which requires the Air Resources
Board to provide each major region of the state with
greenhouse gas emission reduction targets for the automobile
and light truck sector and requires the regional
transportation plan to include a Sustainable Communities
Strategy (SCS), including a regional land use plan, designed
to achieve the targets for greenhouse gas emission reduction.
Regional transportation planning agencies, however, do not
have land use powers. To achieve the land use vision laid out
in the SCS, cities and counties must alter their general plans
and zoning ordinances to allow the types of development the
SCS contemplates. These city and county actions are
voluntary, however. SB 375 contains no requirement for a city
or county to conform its land use plans to the SCS.
Because a region's RHNA housing need allocation must be
consistent with the SCS, because housing element law requires
cities and counties to identify adequately zones sites or
rezone land to accommodate lower-income housing, and because
density is the proxy for affordability, housing element law is
currently the only tool to get cities and counties to increase
allowable housing densities needed to achieve the SB 375
regional greenhouse gas emission reduction targets. Without
an effective way to enforce housing element law, the only tool
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to effectively ensure implementation of SB 375 at the local
level is lost.
6.Arguments in opposition . Opponents oppose lengthening
statutes of limitations generally. They believe memories
fade, witnesses become difficult to locate, and courts are
less likely to be fair. Moreover, short statutes of
limitations encourage the diligent settling of claims.
Previous votes not relevant
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
June 23, 2010)
SUPPORT: California Rural Legal Assistance Foundation
(sponsor)
Housing California (sponsor)
California Association of Realtors
California Coalition for Rural Housing
City of Oakland
Community Housing Improvement Program
Sacramento Housing Alliance
Self-Help Enterprises
Silicon Valley Leadership Group
Transform
OPPOSED: Civil Justice Association of California