BILL ANALYSIS                                                                                                                                                                                                    ”



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          ASSEMBLY THIRD READING
          AB 1220 (Alejo)
          As Amended  April 25, 2011
          Majority vote 

           HOUSING             5-2         LOCAL GOVERNMENT    5-3         
           
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          |Ayes:|Torres, Atkins, Bradford, |Ayes:|Alejo, Bradford, Campos,  |
          |     |Cedillo, Hueso            |     |Davis, Hueso              |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Jeffries, Miller          |Nays:|Smyth, Knight, Norby      |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           SUMMARY  :  Revises the statute of limitations and remedies for 
          specified housing-related challenges.  Specifically,  this bill  :  


          1)Requires 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)Excludes 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.  

          3)Requires 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 correct the 
            deficiency, following which a dissatisfied party may file an 
            action in court.  No court filing can be initiated under this 
            bill more than five years after the underlying action by the 
            local government.

          4)Provides 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)Provides that in any action or proceeding brought pursuant to 








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            the foregoing provision, no remedy, and no injunction pursuant 
            to Government Code Section 65754.5, shall abrogate, impair, or 
            otherwise interfere with the full exercise of the rights and 
            protections granted to:  1) an applicant for a tentative map 
            pursuant to Government Code Section 66474.2; or, 2) a 
            developer pursuant to Government Code Sections 65866 and 
            66498.1.

          6)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.

          7)States that it is the intent of the Legislature to modify the 
            court's opinion in Urban Habitat Program v. City of Pleasanton 
            (2008) 164 Cal.App.4th 1561, with respect to the 
            interpretation of Government Code Section 65009.

           FISCAL EFFECT  :  None
          
           COMMENTS  :  Prior to a recent court decision, it housing 
          advocates generally 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 a number of other housing-related statutes.

          In 2006 Urban Habitat Program brought suit to challenge the City 
          of Pleasanton's (city) 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 Regional Housing Needs Assessment (RHNA) obligation.  
          In 2008, the First District California Court of Appeals issued 
          an unpublished decision in the case of Urban Habitat Program v. 








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          City of 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.

          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 
          (Waters) 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. AB 
          998 (Waters) specified, for challenges in support of low- and 
          moderate-income housing requirements, that the petitioner must 
          notice local government 60 days prior to filing action, and that 
          a one-year statute of limitations would then begin on the first 
          day that the legislative body fails to act.  The law was silent 
          on when the 60-day notice had to be served, the prevailing 
          interpretation of which was that the notice could be served at 
          any point during the housing element planning period, which at 
          the time was five years for all jurisdictions.

          This bill modifies the court's in opinion in Urban Habitat 
          Program v. City of Pleasanton.  It allows an entity challenging 
          an action in support of affordable housing to serve the 
          deficiency notice up to five years after the city's or county's 
          action.  The bill provides that after 60 days or the date on 
          which the city or county takes final action in response to the 








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          notice (whichever occurs first), the challenging party has one 
          year to file an action in court, except that the lawsuit may not 
          be filed more than five years after the city's or county's 
          action.  

          Current law (Government Code Section 65009) 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 a number a 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, including suspending the authority of the city or 
          county to issue building permits, suspending the authority of 
          the city or county to grant zoning changes and/or variances, 
          suspending the authority of the city or county to grant 
          subdivision map approvals, mandating the approval of building 
          permits for residential housing that meet specified criteria, 
          mandating the approval of final subdivision maps for housing 
          projects that meet specified criteria, and mandating 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.

          Under current law, the Department of Housing and Community 
          Development (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.  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.









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           Analysis Prepared by  :    Anya Lawler / H. & C.D. / (916) 
          319-2085 


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