BILL ANALYSIS Ó
AB 1220
Page 1
GOVERNOR'S VETO
AB 1220 (Alejo)
As Amended September 2, 2011
2/3 vote
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|ASSEMBLY: |47-26|(May 12, 2011) |SENATE: |24-14|(September 8, |
| | | | | |2011) |
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|ASSEMBLY: |49-27|(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
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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
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.
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
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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 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
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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
Ýaffordable] housing." The challenging party was first required
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
Ýa 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
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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-
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
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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
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.
GOVERNOR'S VETO MESSAGE :
"This bill increases the statute of limitations from 90 days to
3 years for a citizen to file a Notice of Deficiency in a
locally adopted housing element.
"While I understand the value of using the courts to compel
compliance with state housing goals, there should be a balance
between a local government's planning authority and citizen
oversight. This bill tilts that balance and creates too much
uncertainty."
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Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085
FN: 0002969