BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 1220
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1220 (Alejo)
          As Amended  September 2, 2011
          Majority vote
           
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          |ASSEMBLY:  |47-26|(May 12, 2011)  |SENATE: |24-14|(September 8,  |
          |           |     |                |        |     |2011)          |
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           Original Committee Reference:    H. & C.D.  

           SUMMARY  :  Allows an entity in support of affordable housing to 
          challenge a housing element or certain city or county housing 
          ordinances within three years of adoption. Specifically,  this 
          bill  :

          1)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 three 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 three 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 three years of the city's or 
            county's action, whichever occurs first.

          2)Excludes from the types of challenges that may be brought 
            during the time period specified above 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)Clarifies that in any action or proceeding brought pursuant to 
            the foregoing provision, neither the court remedies allowed 
            under existing law 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 








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            Map Act or to a developer under a specified provision relating 
            to development agreements.

          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 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.

          6)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.

           The Senate amendments  reduce from five to three years the 
          statute of limitations for challenging a housing element or 
          certain city or county housing ordinances.  

          AS PASSED BY THE ASSEMBLY  , this bill allowed an entity in 
          support of affordable housing to challenge a housing element or 
          certain city or county housing ordinances within five years of 
          adoption.  

          FISCAL EFFECT  :  None
          
           COMMENTS  :  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 








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          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 development. 

          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 contribute to producing housing at 
            the lowest possible cost.

          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 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 the 
          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 first required 








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          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 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 Program v. 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 that for challenges in support of low- 








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          and moderate-income housing, the petitioner must notice local 
          government 60 days prior to filing action, and that a one-year 
          statute of limitations would begin on the first day that the 
          legislative body failed 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 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 three 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 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 three years after the city's or county's action. 
           

          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 three-year statute of limitations 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 
          ongoing policies.  

          There are also logistical reasons for an ongoing 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 
          resources are spread very thin.  They simply do not have the 








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          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.


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


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