BILL ANALYSIS Ó AB 1220 Page 1 GOVERNOR'S VETO AB 1220 (Alejo) As Amended September 2, 2011 2/3 vote ----------------------------------------------------------------- |ASSEMBLY: |47-26|(May 12, 2011) |SENATE: |24-14|(September 8, | | | | | | |2011) | ----------------------------------------------------------------- ----------------------------------------------------------------- |ASSEMBLY: |49-27|(September 8, | | | | | | |2011) | | | | ----------------------------------------------------------------- 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 AB 1220 Page 2 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 AB 1220 Page 3 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 AB 1220 Page 4 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 AB 1220 Page 5 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 AB 1220 Page 6 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." AB 1220 Page 7 Analysis Prepared by : Anya Lawler / H. & C.D. / (916) 319-2085 FN: 0002969