BILL ANALYSIS Ó
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 1220
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: Alejo
VERSION: 4/25/11
Analysis by: Mark Stivers FISCAL: No
Hearing date: June 14, 2011
SUBJECT:
Statute of limitations and remedies for specified
housing-related challenges
DESCRIPTION:
This bill allows an entity in support of affordable housing to
challenge a housing element or a specified city or county
housing ordinance within five years of adoption.
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 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 receives 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
compliance with the law. Many of HCD's grant programs require a
city or county to have an HCD-approved housing element in order
to be eligible for funding.
The Planning and Zoning Law and the Subdivision Map Act also
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include 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 that 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 (Government Code Section 65009) 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 Ýaffordable] 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 is known as the "notice
and accrual provision" and 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 number of permissible housing units, both of which
Urban Habitat claimed were insufficient to allow the city to
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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 concluded that, while the statute does not specify the
time within which a party must deliver the deficiency notice to
the city or county, it must interpret the statute as containing
a time limit. The court then set the deadline for serving a
notice at 90 days after the legislative action to adopt the
housing element or ordinance at issue.
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.
Current law also 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 states the intent of the Legislature to modify the
portion of the Urban Habitat opinion relating to the statute of
limitations for using the Government Code 65009 notice and
accrual provision, limits the applicability of the notice and
accrual provision, and provides a five-year time frame for
parties to initiate an action "in support of or to encourage or
facilitate the development of housing that would increase the
community's supply of Ýaffordable] housing." Specifically, the
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bill:
States the intent of the Legislature to modify the court's
opinion in Urban Habitat Program v. City of Pleasanton with
respect to the interpretation of Section 65009 of the
Government Code.
Removes from the current list of city or county actions that a
party may challenge pursuant to the Government Code 65009
notice and accrual provision those actions related to the
Housing Accountability Act, the Subdivision Map Act, and the
application of a Density Bonus ordinance to a particular
project, all of which are project-specific actions. The bill
maintains the ability to use the notice and accrual provision
to challenge the adequacy of a city's or county's density
bonus ordinance generally.
Provides that an entity bringing a challenge in support of
affordable housing against a city or county action relating to
housing element law, the Least Cost Zoning Law, annual limits
on housing permits, or the adequacy of a density bonus
ordinance may serve a deficiency notice up to five years after
the city's or county's action. 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 an action in court, except that the suit may not
be filed more than five years after the city's or county's
action. In other words, the entity must file the suit within
one year of the expiration of the deficiency notice or within
five years of the city's or county's action, whichever occurs
first.
Clarifies that in any action brought pursuant to the notice
and accrual provisions of Government Code Section 65009,
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.
Provides that if a third-party challenges the adequacy of a
housing element 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
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for purposes of state housing grant programs.
COMMENTS:
1.Purpose of the bill . According to the author, this bill
corrects a flawed court ruling that held that citizens may
only challenge the adequacy of a city's or county's housing
element for 90 days from the date of adoption. Combined with
the recent change to an eight-year housing element cycle, the
ruling holds the potential for more than seven years of bad
land-use decisions with little recourse for citizen action.
2.Current level of housing element compliance . According to
HCD's 2010 annual housing element report to the Legislature,
as of December 31, 2010, only 52 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.
3.The importance of being able to challenge on-going policies .
Creating certainty by maintaining a short time frame for legal
challenges is important for individual development projects.
Housing elements, zoning ordinances, growth control
ordinances, and density bonus ordinances, on the other hand,
are living documents meant to guide cities' and counties'
current and future land use decisions. When a housing element
or such an ordinance fails to comply with state law, it is
important that it be correctable whenever the deficiencies are
identified. In recognition of the difference between specific
project-related decisions and general policies guiding future
development, this bill deletes the ability of affordable
housing advocates to use the Government Code 65009 notice and
accrual provision to challenge a project specific decision
under the Housing Accountability Act, the Subdivision Map Act,
or a density bonus ordinance while maintaining the notice and
accrual provision for challenging on-going policies.
There are also logistical reasons for an on-going enforcement
period for housing elements. The state generally does not
enforce housing element or other affordable housing laws
directly. Enforcement relies on local governments' voluntary
compliance with the possibility of citizen enforcement
actions, most often by affordable housing advocacy groups.
There are not many of these nonprofit organizations in the
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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 and other affordable housing laws rely 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 more than
90 days after adoption. While there is no apparent policy
rationale for setting any time limit on such challenges, this
bill offers a compromise by allowing potential challengers to
serve a deficiency only within five years of adoption of the
housing element or specified ordinance.
4.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 Ýone-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, 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.
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5.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
Ýthe 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.
6.Key to AB 32/SB 375 implementation . In 2006, the Legislature
enacted AB 32 (Nuñez), 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
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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
to effectively ensure implementation of SB 375 at the local
level is lost.
7.Arguments in opposition . Local government opponents believe a
five-year statute of limitation is too long and that this bill
will encourage a broad array of expensive lawsuits that do not
differentiate between major non-compliance with state law or a
small difference in interpretation. They believe that this
additional legal exposure is especially unwarranted at a time
when they are facing significant fiscal pressures. They
argue, moreover, that the challenges allowed by this bill do
not mandate approval of actual housing projects but only
require a change in a planning document.
The Civil Justice Association opposes 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.
8.Previous legislation . Last year, the Legislature approved a
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bill, AB 602 (Feuer), that was identical to this bill.
Governor Schwarzenegger vetoed AB 602, stating:
Local governments face numerous potential legal liabilities
when land is developed. One of the protections and
assurances provided to local governments in order to
encourage them to move forward with land development is
that there is a reasonable statute of limitations on when a
legal claim can be filed. Existing law gives interested
parties sufficient time to bring an action, and extending
this period to five years could result in uncertainty for
local governments.
Assembly Votes:
Floor:47-26
L Gov: 5-3
HCD: 5-2
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
June 8, 2011)
SUPPORT: California Rural Legal Assistance Foundation
(sponsor)
Housing California (sponsor)
The Arc of California
Bay Area Council
California Association of Realtors
California Coalition for Rural Housing
Century Housing Corporation
Community Housing Improvement Program
Congress of California Seniors
Corporation for Supportive Housing
Desert Manna
Los Angeles Homeless Services Authority
Mammoth Lakes Housing Inc.
Mercy Housing
Natural Resources Defense Council
Public Advocates
San Diego Housing Federation
Self-Help Enterprises
Silicon Valley Leadership Group
Sonoma County Task Force for the Homeless
Southern California Association of Non-Profit
Housing
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Transform
United Cerebral Palsy
Urban Habitat
Western Center on Law and Poverty
OPPOSED: American Council of Engineering Companies of
California
American Planning Association, California Chapter
Association of California Cities - Orange County
California State Association of Counties
City of Brea
City of Carlsbad
City of Cypress
City of Eastvale
City of Fullerton
City of Mission Viejo
City of Whittier
Civil Justice Association of California
County of Marin
County of Orange
County of San Diego
County of Santa Clara
County of Tulare
League of California Cities
Los Angeles Division of the League of California
Cities
Regional Council of Rural Counties
Town of Apple Valley