Amended in Assembly May 29, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 325

Introduced by Assembly Member Alejo

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(Coauthor: Assembly Member Ammiano)

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February 13, 2013

An act to amend Sections 65009, 65589.3, and 65755 of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

AB 325, as amended, Alejo. Land use and planning: cause of actions: time limitations.

(1) The Planning and Zoning Law requires an action or proceeding against local zoning and planning decisions of a legislative body to be commenced and the legislative body to be served within a year of accrual of the cause of action, if it meets certain requirements. Where the action or proceeding is brought in support of begin insert , end insert or to encourage or facilitate the development of begin insert , end insert housing that would increase the community’s supply of affordable housing, a cause of action accrues 60 days after begin insert a certain end insert notice is filed or the legislative body takes a final action in response to the notice, whichever occurs first.

This bill would authorize the notice to be filed any time within 3 years after begin delete a specified end delete begin insert an end insert action begin insert taken end insert pursuant to begin delete existing law end delete begin insert certain laws, but would set a 270-day period for notice with respect to an adopted or revised housing element that is found to substantially comply with law. This bill would also establish a 6-month limitations period for the commencement of an action or proceeding arising from a notice subject to the 270-day period end insert . The bill would declare the intent of the Legislature begin delete that its provisions end delete begin insert to end insert modify a specified court opinion. The bill would also provide that in begin delete that specified end delete begin insert an end insert action or proceeding begin insert subject to a one-year or 6-month limitations period end insert , no remedy pursuant to specified provisions of law begin insert shall end insert abrogate, impair, or otherwise interfere with the full exercise of the rights and protections granted to a tentative map application or a developer, as prescribed.

(2) The Planning and Zoning Law establishes a rebuttable presumption, in any action filed on or after January 1, 1991, taken to challenge the validity of a housing element, of the validity of a housing element or amendment if the Department of Housing and Community Development has found that the element or amendment substantially complies with specified provisions of existing law.

This bill would provide in any action brought against a city, county, or city and county to challenge the adequacy of a housing element, if a court finds that the adopted housing element or amended housing element for the current planning period substantially complies with specified provisions, that the element or amendment be deemed to satisfy any condition of a state-administered housing grant program requiring a department finding of housing element compliance.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

It is the intent of the Legislature in enacting
Section 2 of this act 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 Section 65009 of the Government
Code.

SEC. 2.  

Section 65009 of the Government Code is amended
to read:

65009.  

(a) (1) The Legislature finds and declares that there
currently is a housing crisis in California and it is essential to
reduce delays and restraints upon expeditiously completing housing
projects.

(2) The Legislature further finds and declares that a legal action
or proceeding challenging a decision of a city, county, or city and
county has a chilling effect on the confidence with which property
owners and local governments can proceed with projects. Legal
actions or proceedings filed to attack, review, set aside, void, or
annul a decision of a city, county, or city and county pursuant to
this division, including, but not limited to, the implementation of
general plan goals and policies that provide incentives for
affordable housing, open-space and recreational opportunities, and
other related public benefits, can prevent the completion of needed
developments even though the projects have received required
governmental approvals.

(3) The purpose of this section is to provide certainty for
property owners and local governments regarding decisions made
pursuant to this division.

(b) (1) In an action or proceeding to attack, review, set aside,
void, or annul a finding, determination, or decision of a public
agency made pursuant to this title at a properly noticed public
hearing, the issues raised shall be limited to those raised in the
public hearing or in written correspondence delivered to the public
agency prior to, or at, the public hearing, except where the court
finds either of the following:

(A) The issue could not have been raised at the public hearing
by persons exercising reasonable diligence.

(B) The body conducting the public hearing prevented the issue
from being raised at the public hearing.

(2) If a public agency desires the provisions of this subdivision
to apply to a matter, it shall include in any public notice issued
pursuant to this title a notice substantially stating all of the
following: “If you challenge the (nature of the proposed action)
in court, you may be limited to raising only those issues you or
someone else raised at the public hearing described in this notice,
or in written correspondence delivered to the (public entity
conducting the hearing) at, or prior to, the public hearing.”

(3) The application of this subdivision to causes of action
brought pursuant to subdivision (d) applies only to the final action
taken in response to the notice to the city or clerk of the board of
supervisors. If no final action is taken, then the issue raised in the
cause of action brought pursuant to subdivision (d) shall be limited
to those matters presented at a properly noticed public hearing or
to those matters specified in the notice given to the city or clerk
of the board of supervisors pursuant to subdivision (d), or both.

(c) (1) Except as provided in subdivision (d), no action or
proceeding shall be maintained in any of the following cases by
any person unless the action or proceeding is commenced and
service is made on the legislative body within 90 days after the
legislative body’s decision:

(A) To attack, review, set aside, void, or annul the decision of
a legislative body to adopt or amend a general or specific plan.
This paragraph does not apply where an action is brought based
upon the complete absence of a general plan or a mandatory
element thereof, but does apply to an action attacking a general
plan or mandatory element thereof on the basis that it is inadequate.

(B) To attack, review, set aside, void, or annul the decision of
a legislative body to adopt or amend a zoning ordinance.

(C) To determine the reasonableness, legality, or validity of any
decision to adopt or amend any regulation attached to a specific
plan.

(D) To attack, review, set aside, void, or annul the decision of
a legislative body to adopt, amend, or modify a development
agreement. An action or proceeding to attack, review, set aside,
void, or annul the decisions of a legislative body to adopt, amend,
or modify a development agreement shall only extend to the
specific portion of the development agreement that is the subject
of the adoption, amendment, or modification. This paragraph
applies to development agreements, amendments, and
modifications adopted on or after January 1, 1996.

(E) To attack, review, set aside, void, or annul any decision on
the matters listed in Sections 65901 and 65903, or to determine
the reasonableness, legality, or validity of any condition attached
to a variance, conditional use permit, or any other permit.

(F) Concerning any of the proceedings, acts, or determinations
taken, done, or made prior to any of the decisions listed in
subparagraphs (A), (B), (C), (D), and (E).

(2) In the case of an action or proceeding challenging the
adoption or revision of a housing element pursuant to this
subdivision, the action or proceeding may, in addition, be
maintained if it is commenced and service is made on the
legislative body within 60 days following the date that the
Department of Housing and Community Development reports its
findings pursuant to subdivision (h) of Section 65585.

(d) (1)  begin delete An end delete begin insert Except as provided in paragraph (2), an end insert action or
proceeding shall be commenced and the legislative body served
within one year after the accrual of the cause of action as provided
in this subdivision begin insert , end insert if the action or proceeding meets both of the
following requirements:

(A) It is brought in support of or to encourage or facilitate the
development of housing that would increase the community’s
supply of housing affordable to persons and families with low or
moderate incomes, as defined in Section 50079.5 of the Health
and Safety Code, or with very low incomes, as defined in Section
50105 of the Health and Safety Code, or middle-income
households, as defined in Section 65008 of this code. This
subdivision is not intended to require that the action or proceeding
be brought in support of or to encourage or facilitate a specific
housing development project.

(B) It is brought with respect to actions taken pursuant to Article
10.6 (commencing with Section 65580) of Chapter 3, Section
65863.6, or Chapter 4.2 (commencing with Section 65913), or to
challenge the adequacy of an ordinance adopted pursuant to Section
65915.

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(2) An action or proceeding challenging the adoption or revision
of a housing element that the Department of Housing and
Community Development has found to substantially comply with
the requirements of Article 10.6 (commencing with Section 65580)
of Chapter 3 shall be commenced, and the legislative body shall
be served, within six months after the accrual of the cause of action
as provided in this subdivision.

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(2)

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begin insert (3) end insert begin insert   end insert begin insert (A) end insert  A cause of action brought pursuant to this subdivision
shall not be maintained until 60 days have expired following notice
to the city or clerk of the board of supervisors by the party bringing
the cause of action, or his or her representative, specifying the
deficiencies of the general plan, specific plan, or zoning ordinance.
A cause of action brought pursuant to this subdivision shall accrue
60 days after notice is filed or the legislative body takes a final
action in response to the notice, whichever occurs first. begin delete This end delete

begin insert (B) end insert begin insert   end insert begin insert This end insert notice may be filed at any time within three years after
an action described in subparagraph (B) of paragraph (1) begin insert , except
that, if the notice specifies a deficiency in an adopted or revised
housing element that has been found to substantially comply with
the requirements of Article 10.6 (commencing with Section 65580)
of Chapter 3, the notice may be filed at any time within 270 days
after the action to revise or adopt the housing element end insert . begin delete A end delete

begin insert (4) end insert begin insert   end insert begin insert A end insert notice or cause of action brought by one party pursuant
to this subdivision shall not bar filing of a notice and initiation of
a cause of action by any other party.

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(3)

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begin insert (5) end insert  After the adoption of a housing element covering the current
planning period, no action shall be filed pursuant to this subdivision
to challenge a housing element covering a prior planning period.

(e) Upon the expiration of the time limits provided for in this
section, all persons are barred from any further action or
proceeding.

(f) Notwithstanding Sections 65700 and 65803, or any other
provision of law, this section shall apply to charter cities.

(g) Except as provided in subdivision (d), this section shall not
affect any law prescribing or authorizing a shorter period of
limitation than that specified herein.

(h) Except as provided in paragraph (4) of subdivision (c), this
section shall be applicable to those decisions of the legislative
body of a city, county, or city and county made pursuant to this
division on or after January 1, 1984.

SEC. 3.  

Section 65589.3 of the Government Code is amended
to read:

65589.3.  

(a)  In any action filed on or after January 1, 1991,
taken to challenge the validity of a housing element, there shall
be a rebuttable presumption of the validity of the element or
amendment if, pursuant to Section 65585, the department has found
that the element or amendment substantially complies with the
requirements of this article.

(b) In any action brought against a city, county, or city and
county to challenge the adequacy of a housing element, if a court
finds that the adopted housing element or amended housing element
for the current planning period substantially complies with all of
the requirements of this article, including, but not limited to, the
requirements for public participation set forth in paragraph (7) of
subdivision (c) of Section 65583, the element or amendment shall
be deemed to satisfy any condition of a state-administered housing
grant program requiring a department finding that the housing
element substantially complies with the requirements of this article.

SEC. 4.  

Section 65755 of the Government Code is amended
to read:

65755.  

(a) The court shall include, in the order or judgment
rendered pursuant to Section 65754, one or more of the following
provisions for any or all types or classes of developments or any
or all geographic segments of the city, county, or city and county
until the city, county, or city and county has substantially complied
with the requirements of Article 5 (commencing with Section
65300):

(1) Suspend the authority of the city, county, or city and county
pursuant to Division 13 (commencing with Section 17910) of the
Health and Safety Code, to issue building permits, or any category
of building permits, and all other related permits, except that the
city, county, or city and county shall continue to function as an
enforcement agency for review of permit applications for
appropriate codes and standards compliance, prior to the issuance
of building permits and other related permits for residential housing
for that city, county, or city and county.

(2) Suspend the authority of the city, county, or city and county,
pursuant to Chapter 4 (commencing with Section 65800) to grant
any and all categories of zoning changes, variances, or both.

(3) Suspend the authority of the city, county, or city and county,
pursuant to Division 2 (commencing with Section 66410), to grant
subdivision map approvals for any and all categories of subdivision
map approvals.

(4) Mandate the approval of all applications for building permits,
or other related construction permits, for residential housing where
a final subdivision map, parcel map, or plot plan has been approved
for the project, where the approval will not impact on the ability
of the city, county, or city and county to properly adopt and
implement an adequate housing element, and where the permit
application conforms to all code requirements and other applicable
provisions of law except those zoning laws held to be invalid by
the final court order, and changes to the zoning ordinances adopted
after such final court order which were enacted for the purpose of
preventing the construction of a specific residential development.

(5) Mandate the approval of any or all final subdivision maps
for residential housing projects which have previously received a
tentative map approval from the city, county, or city and county
pursuant to Division 2 (commencing with Section 66410) when
the final map conforms to the approved tentative map, the tentative
map has not expired, and where approval will not impact on the
ability of the city, county, or city and county to properly adopt and
implement an adequate housing element.

(6) Mandate that notwithstanding the provisions of Sections
66473.5 and 66474, any tentative subdivision map for a residential
housing project shall be approved if all of the following
requirements are met:

(A) The approval of the map will not significantly impair the
ability of the city, county, or city and county to adopt and
implement those elements or portions thereof of the general plan
which have been held to be inadequate.

(B) The map complies with all of the provisions of Division 2
(commencing with Section 66410), except those parts which would
require disapproval of the project due to the inadequacy of the
general plan.

(C) The approval of the map will not affect the ability of the
city, county, or city and county to adopt and implement an adequate
housing element.

(D) The map is consistent with the portions of the general plan
not found inadequate and the proposed revisions, if applicable, to
the part of the plan held inadequate.

(b) Any order or judgment of a court which includes the
remedies described in paragraphs (1), (2), or (3) of subdivision (a)
shall exclude from the operation of that order or judgment any
action, program, or project required by law to be consistent with
a general or specific plan if the court finds that the approval or
undertaking of the action, program, or project complies with both
of the following requirements:

(1) That it will not significantly impair the ability of the city,
county, or city and county to adopt or amend all or part of the
applicable plan as may be necessary to make the plan substantially
comply with the requirements of Article 5 (commencing with
Section 65300) in the case of a general plan, or Article 8
(commencing with Section 65450) in the case of a specific plan.

(2) That it is consistent with those portions of the plan
challenged in the action or proceeding and found by the court to
substantially comply with applicable provisions of law.

The party seeking exclusion from any order or judgment of a
court pursuant to this subdivision shall have the burden of showing
that the action, program, or project complies with paragraphs (1)
and (2).

(c) Notwithstanding Section 65754.4 or subdivisions (a) and
(b), in any action or proceeding brought pursuant to subdivision
(d) of Section 65009, no remedy pursuant to this section or
injunction pursuant to Section 65754.5 shall abrogate, impair, or
otherwise interfere with the full exercise of the rights and
protections granted to (1) an applicant for a tentative map pursuant
to Section 66474.2, or (2) a developer pursuant to Sections 65866
and 66498.1.