BILL ANALYSIS                                                                                                                                                                                                    Ó


          |SENATE RULES COMMITTEE            |                  AB 1220|
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                                 THIRD READING

          Bill No:  AB 1220
          Author:   Alejo (D), et al.
          Amended:  4/25/11 in Assembly
          Vote:     21

          AYES:  DeSaulnier, Kehoe, Lowenthal, Pavley, Simitian
          NOES:  Gaines, Harman, Huff
          NO VOTE RECORDED:  Rubio
          ASSEMBLY FLOOR  :  47-26, 5/12/11 - See last page for vote

            SUBJECT  :    Statute of limitations and remedies for 
                      specified housing-related challenges

           SOURCE  :     California Rural Legal Assistance Foundation 
                      Housing California

           DIGEST  :    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 


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          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 include a number of sections governing zoning and 
          entitlements specifically related to housing, including:

          1. 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.

          2. 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. 

          3. 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 

          4. 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 



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             contribute to producing housing at the lowest possible 

          5. 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 ŬGOV] 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 Ŭaffordable] 
          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 

          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 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.



                                                               AB 1220

          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:

          1. Suspend the authority of the city or county to issue 
             building permits.

          2. Suspend the authority of the city or county to grant 
             zoning changes and/or variances.

          3. Suspend the authority of the city or county to grant 
             subdivision map approvals.

          4. Mandate the approval of building permits for residential 
             housing that meet specified criteria.  

          5. Mandate the approval of final subdivision maps for 
             housing projects that meet specified criteria.

          6. Mandate the approval of tentative subdivision maps for 
             residential housing projects that meet specified 

          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 GOV Section 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 Ŭaffordable] 
          housing."  Specifically, this bill:



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          1. 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 GOV.

          2. Removes from the current list of city or county actions 
             that a party may challenge pursuant to the GOV Section 
             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.  This 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 

          3. 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.

          4. Clarifies that in any action brought pursuant to the 
             notice and accrual provisions of GOV 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.

          5. Provides that if a third-party challenges the adequacy 



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             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 for purposes of state 
             housing grant programs.

           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.    

           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 GOV Section 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 state, and their 



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          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.  

           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 Ŭone-year] statute of limitations then 
            begins on the first day the legislative body fails to 

          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 



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          statute in this regard. 

           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' (SANDAG's) Regional Comprehensive Plan 
          describes this typical California paradox in the following 

          Under current plans and policies, more than 90 percent of 
          Ŭthe 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.  
           Previous Legislation
          Last year, the Legislature approved a bill, AB 602 (Feuer), 
          Session of 2009-10, that was identical to this bill.  



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          Governor Schwarzenegger vetoed AB 602, 

            "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."

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  6/15/11)

          California Rural Legal Assistance Foundation (source)
          Housing California (source)
          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
          Planning and Conservation League
          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
          United Cerebral Palsy
          Urban Habitat
          Western Center on Law and Poverty



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           OPPOSITION  :    (Verified  6/15/11)

          Affordable Housing Advocates
          American Council of Engineering Companies of California
          American Planning Association, California Chapter
          Association of California Cities - Orange County
          California State Association of Counties
          Cities of Brea, Carlsbad, Cerritos, Cypress, Eastvale, 
            Fullerton, Mission Viejo, Red Bluff, and Whittier
          Civil Justice Association of California
          Counties of Marin, Orange, San Diego, Santa Clara, and 
          Fresno Mayor Ashley Swearengin
          League of California Cities
          Los Angeles Division of the League of California Cities
          Regional Council of Rural Counties
          Town of Apple Valley

           ARGUMENTS IN SUPPORT  :    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.

           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.   



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           ASSEMBLY FLOOR  :  47-26, 5/12/11
          AYES:  Alejo, Allen, Ammiano, Atkins, Beall, Block, 
            Blumenfield, Bonilla, Bradford, Brownley, Buchanan, 
            Butler, Charles Calderon, Campos, Carter, Davis, 
            Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani, 
            Gordon, Hall, Hayashi, Roger Hernández, Hill, Huber, 
                                                                                           Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza, 
            Mitchell, Monning, Pan, Perea, V. Manuel Pérez, Skinner, 
            Solorio, Swanson, Wieckowski, Williams, Yamada, John A. 
          NOES:  Achadjian, Bill Berryhill, Conway, Cook, Donnelly, 
            Fletcher, Beth Gaines, Gatto, Grove, Hagman, Halderman, 
            Harkey, Jeffries, Jones, Knight, Logue, Mansoor, Miller, 
            Morrell, Nestande, Nielsen, Norby, Olsen, Silva, Smyth, 
          NO VOTE RECORDED:  Cedillo, Chesbro, Garrick, Gorell, 
            Portantino, Torres, Valadao

          JJA:kc  6/16/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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