BILL ANALYSIS
AB 602
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 602 (Feuer)
As Amended August 20, 2010
Majority vote
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|ASSEMBLY: | |(May 4, 2009) |SENATE: |27-5 |(August 24, |
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(vote not relevant)
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|COMMITTEE VOTE: |6-1 |(August 25, 2010) |RECOMMENDATION: |concur |
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Judiciary
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|COMMITTEE VOTE: |5-1 |(August 30, 2010) |RECOMMENDATION: |concur |
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Local Government
Original Committee Reference: B.& P.
SUMMARY : Protects developer's rights and promotes compliance with
existing legal obligations to make appropriate plans for affordable
housing to meet all community needs.
The Senate amendments delete the Assembly version of this bill, and
instead:
1)Require a specified notice to be filed with the local government
within five years after an action to adopt, amend, or revise a
housing element, actions relating to the Least Cost Zoning Law,
annual limits on housing permits, and the adequacy of a density
bonus ordinance.
2)Exclude from the types of challenges that may be brought during
this time period any action related to the Housing Accountability
Act, the Subdivision Map Act, or the application of a Density
Bonus ordinance to a particular project, all of which are
project-specific actions.
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3)Require a challenging party to first serve the city or county
with a notice identifying the deficiencies in the housing
element, and allows the city or county 60 days to take correct
the deficiency, following which a dissatisfied party may file an
action in court.
4)Provide that a housing element from a prior planning period may
not be challenged if the city or county has adopted a revised
housing element for the new planning period.
5)Provide that in any action or proceeding brought pursuant to the
foregoing provision no remedy, and no injunction pursuant to
Government Code (GC) Section 65754.5, shall abrogate, impair, or
otherwise interfere with the full exercise of the rights and
protections granted to: a) an applicant for a tentative map
pursuant to GC Section 66474.2; or, b) a developer pursuant to GC
Sections 65866 and 66498.1.
6)Provide that if a third-party challenges the adequacy of a
housing element in court and the court finds that the housing
element substantially complies with all of the requirements of
housing element law, the element shall be deemed to be in
compliance for purposes of state housing grant programs.
EXISTING LAW , under the Planning and Zoning Law, requires local
governments to take specified actions to plan for affordable
housing and requires an action or proceeding against local zoning
and planning decisions be commenced and the legislative body to be
served within a year of accrual of the cause of action if it meets
certain requirements. Where the action or proceeding is brought in
support of or to encourage or facilitate the development of housing
that would increase the community's supply of affordable housing, a
cause of action accrues 60 days after notice is filed or the
legislative body takes a final action in response to the notice,
whichever occurs first. (GC Section 65009(d).)
AS PASSED BY THE ASSEMBLY , this bill authorized registered
dispensing opticians (RDO) to receive license renewal materials
provided by the Medical Board of California (MBC) at an address
other than the place of business.
FISCAL EFFECT : None
COMMENTS : The author explains that this bill partially restores
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the law to its longstanding interpretation prior to a recent court
decision so that residents can hold local governments accountable
to follow existing law requiring local governments to adopt housing
elements that plan for a community's share of the regional need for
housing. Because these housing plans are in place for 5 to 8 year
periods, this bill allows deficient a plan to be challenged for
five years - that is, most if not all of the period during which
the plan continues to violate the law. This five-year period is
consistent with the time in which local governments have
traditionally been required to defend their planning actions, and
it is less than the 8-year lifespan of housing elements, which
would be the allowable period in the absence of the surprising
recent court case. This reasonable compromise period provides a
fair opportunity for low-income residents and affordable housing
advocates to bring a case, while giving local governments needed
assurance that their plans cannot be challenged indefinitely.
In addition, the author notes that this bill is more limited than
existing law by substantially limiting the types of legal
challenges that can be brought. Under the bill, no
project-specific actions can be challenged under the Housing
Accountability Act, the Subdivision Map Act, or the application of
a Density Bonus ordinance - all of which are now subject to legal
attack under the statute.
The ability to seek judicial enforcement of local government's
existing obligation to plan for housing is absolutely critical to
the implementation of SB 375 (Steinberg) Chapter 728, Statutes of
2008, California's landmark legislation aimed at reducing green
house gas emissions through changes in land use and transportation
planning. Allocation of the housing needs must be consistent with
the region's Sustainable Communities Strategy, which under SB 375
must shrink the footprint of future development. SB 375 cannot be
effectuated if local governments cannot be held to comply with SB
375's planning obligations.
Supporters argue that AB 602 also creates more certainty for all
home developers by ensuring that any court-ordered remedies will
not affect the rights granted to developers under other statutes.
According to supporters, this bill will facilitate construction,
create jobs, and help ensure a regulatory environment for housing
that encourages the recovery all Californians so badly need.
The bill's sponsors, Housing California and CRLA Foundation, state:
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AB 602 helps ensure that every city and county does its part
to plan for housing to meet the needs of our workforce,
seniors, and other community members. The bill fixes the
recent decision in Urban Habitat v. City of Pleasanton, which
upended a 25-year old law and reduced the time to enforce
housing planning laws to a mere 90 days from enactment. While
most project-specific land use decisions are subject to a
90-day statute of limitations, certain plans relating to
affordable homes have long been subject to an extended period
in which a challenge can be made. Some stakeholders,
particularly low-income residents, are not at the table when
the housing element plan is crafted. Therefore, its
deficiencies may only come to light when the time comes to
implement the plan, e.g. an affordable development is proposed
or a shelter looks to open its doors. The old law - part of
legislation sponsored by the League of CA Cities in 1983 -
recognized this. It allowed citizens to send a deficiency
notice to the local government at any point during the
planning period and then bring suit if the locality did not
fix its housing element. Only 11 suits were brought in 25
years. AB 602 partially restores this long-standing
provision.
California Association of Realtors states that the bill will help
ensure a healthy business environment for the construction of new
housing in California. For 25 years ? housing for low and moderate
income households [has been] treated as a special case and deserved
the exception that was created to recognize that cities and
counties have an ongoing obligation to ensure that such housing can
be built."
Also in support of the bill, Public Advocates, Inc., adds "AB 602
will provide critical accountability to ensure that no California
city or county is immune from state affordable housing laws. Those
laws, designed to help meet California's need for new workforce
housing, only work if each local jurisdiction does its part to
accommodate its fair share of the region's housing need at all
income levels. The requirements of the state Housing Element Law
are effective in helping to meet California's critical need for new
affordable housing only to the extent they can be enforced
throughout the entire planning period covered by a housing element.
AB 602 ensures that a mechanism exists to hold cities and counties
accountable for their fair share of this need."
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Partially Reinstates Longstanding Time Period For Local Governments
To Be Answerable For Housing Element Violations. Prior to an
unusual recent court decision, it was understood for over 25 years
that a party could challenge the adequacy of a city's or county's
housing element at any time during a planning period (generally
five to eight years) when the action is brought "in support of or
to encourage or facilitate the development of housing that would
increase the community's supply of [affordable] housing." During
this time, affordable housing advocates have successively, and
selectively, used the law to enforce compliance with affordable
housing obligations. Because the law required prior notice to
local governments, and limited suits to those attacking a narrow
set of violations filed within one year of the notice, the law
struck a workable balance between the need for meaningful access to
judicial enforcement and local government's need for certainty when
making land use decisions.
Supporters argue that this long history of success has been
undermined by an aberrant court decision slashing the period to 90
days - one of the shortest periods under any law for bringing a
legal challenge, and one that is not specified in the statute.
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 number of
permissible housing units, both of which Urban Habitat claimed were
insufficient to allow the city to meet its affordable housing
obligation. In 2008, the appellate court threw out the challenge,
allowing the city to avoid being answering the allegation on the
facts. The court opined:
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.
(Urban Habitat Program v. City of Pleasanton, 116 Cal. App. 4th
1561 (2008).) In other words, instead of being able to initiate a
challenge to a deficient housing element at all relevant times
times during the planning period, housing advocates and other
interested parties may only initiate such a challenge by submitting
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a deficiency notice within 90 days of the housing element's
adoption.
The Legislature Has Previously Reiterated That Affordable Housing
Actions Should Be Allowed During The Life of the Housing Element,
Regardless Of The Time Period For Other Types of Challenges. The
statutory language interpreted by the Urban Habitat court at issue
in this bill was added to statute by AB 998 (Waters), Chapter 1138,
Statutes of 1983, a bill jointly 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 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, the Senate Transportation and Housing Committee reports,
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. In
this regard it should be noted that this limitations period is a
unique rule applicable only to actions seeking to promote
affordable housing generally, not by those seeking to block or
overturn affordable housing plans, programs, projects or actions.
Background Regarding Housing Element Obligations. 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-
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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
allocation (RHNA) process. This allocation is a linchpin of SB
375, California's seminal green house gas reduction legislation
mandating changes in land use and transportation planning to reduce
vehicle emissions. Allocation of the housing needs must be
consistent with the region Sustainable Communities Strategy
required by SB 375. A housing element accordingly 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 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
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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.
Creating Opportunities For The Private Housing 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 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.
Ongoing Problems With 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
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region, 2008 for the Southern California, Fresno, Kern, and
Sacramento regions, and the summer of 2009 for the remaining areas
of the state.
Clarification of Remedies . Current law requires a court, if it
finds any portion of a general plan, including a housing element,
out of compliance with the law, to include within its order or
judgment one or more of the following remedies for any or all types
of developments or any or all geographic segments of the city or
county until the city or county has complied with the law:
? Suspend the authority of the city or county to issue
building permits.
? Suspend the authority of the city or county to grant zoning
changes and/or variances.
? Suspend the authority of the city or county to grant
subdivision map approvals.
? Mandate the approval of building permits for residential
housing that meet specified criteria.
? Mandate the approval of final subdivision maps for housing
projects that meet specified criteria.
? Mandate the approval of tentative subdivision maps for
residential housing projects that meet specified criteria.
This bill clarifies that in any action or proceeding brought
pursuant to the notice and accrual provisions of Government Code
Section 65009 described above, neither the court remedies described
above nor any injunction against the development of a housing
project shall abrogate, impair, or otherwise interfere with the
full exercise of the rights and protections granted to an applicant
for a tentative map or a vesting tentative map under specified
provisions of the Subdivision Map Act or to a developer under a
specified provision relating to development agreements.
The California Building Industry Association (CBIA) comments in
support:
The goal of the state's housing element law is to plan for and
encourage communities to meet their housing needs for all
types of housing. Challenges to a community's housing element
can often result in a judicially-imposed moratorium on all
housing production in the area (see California Government Code
section 65755). AB 602 will remove some of the dysfunctional
results of the current statutory scheme that punishes builders
by shutting down projects when a city or county fails to
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comply with the law. At a time when California's unemployment
levels are unusually high, a moratorium will not help the job
picture. Housing construction is a prolific job generator.
Indeed, three permanent new jobs are created every time a home
is built. Recovery in the residential market has led the
nation out of recession in nearly every economic recovery of
the past 40 years. AB 602, with its protections for
development projects through build out will facilitate
construction jobs.
Court Approval To Be Deemed Compliance For Grant Purposes. Under
current law, HCD operates a number of grant programs to which
cities and counties may apply. In many cases, the law requires a
city or county to have an HCD-approved housing element in order to
be eligible for funding. At the request of local government
associations, the author reports, this bill provides that if a
third-party challenges the adequacy of a housing element in court
and the court finds that the housing element substantially complies
with all of the requirements of housing element law, the element
shall be deemed to be in compliance for purposes of state housing
grant programs.
Local government opponents assert that the bill allows "any party
to sue a city or county for claims arising out of a number of
housing statutes that could encourage or facilitate loosely-defined
affordable housing goals - a very broad array of potential lawsuits
that does not differentiate between major noncompliance with state
law or a small difference in interpretation. This will leave
cities and counties, businesses and developers unfairly open to
uncertainty and challenges long after decisions have been made."
The local government opponents go on to argue, "The SB 375 deal
provided a number of fast and effective challenge options that
addresses the sponsors concerns. A deal was cut in SB 375 to
provide for new remedies for housing advocates, including a special
remedy to ensure that zoning is done on time with a 60 day
resolution, a three-year statute of limitations to target specific
actions that are inconsistent with state law, and a process to
challenge local agencies if they do not meet deadlines for
implementation contained in their housing elements. Housing
element law has been substantially changed creating more
opportunities for litigation. The law now provides for an 8-year
housing element with a ten-year RHNA, rigorous proof to identify
available sites, and much more detail. Most jurisdictions have not
yet gone through this new housing element process yet, but given
the hundreds of pages that the newer housing elements are turning
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out to be, and the fact that most housing elements cost in the six
figures to complete, the new laws appear to provide an incredible
amount of information, programs and implementation on which to sue
that was not in the law even three years ago. Jeopardizing this
investment years after adoption, in a time of budgetary crisis, is
unfair."
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0006854