Amended in Senate September 6, 2013

Amended in Assembly May 29, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 325


Introduced by Assembly Member Alejo

(Coauthor: Assembly Member Ammiano)

February 13, 2013


An act to amend Sections 65009,begin delete 65589.3,end deletebegin insert 65587,end insert 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.

begin delete

(1) The

end delete

begin insertTheend insert 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, or to encourage or facilitate the development of, housing that would increase the community’s supply of affordable housing, a cause of action accrues 60 days after a certain 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 withinbegin delete 3 yearsend deletebegin insert 180 daysend insert afterbegin delete an action taken pursuant to certain laws,end deletebegin insert specified zoning and planning decisions,end insert 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 lawbegin insert, and a 2-year period for notice with respect to an adopted or revised housing element that is found not to substantially comply with lawend insert. 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 periodbegin insert, a one-year limitations period for the commencement of an action or proceeding arising from a notice subject to the 2-year period, and a 180-day limitations period for the commencement of an action or proceeding arising from a notice subject to the 180-day periodend insert. The bill would declare the intent of the Legislature to modify a specified court opinion. The bill would also provide that in an action or proceeding subject tobegin delete a one-year or 6-month limitations period,end deletebegin insert these provisions,end insert no remedy pursuant to specified provisions of law shall 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.begin insert The bill would make further conforming changes.end insert

begin delete

(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.

end delete
begin delete

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.

end delete

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

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

P2    1

SECTION 1.  

It is the intent of the Legislature in enacting
2Section 2 of this act to modify the court’s opinion in Urban Habitat
3Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, with
4respect to the interpretation of Section 65009 of the Government
5Code.

6

SEC. 2.  

Section 65009 of the Government Code is amended
7to read:

P3    1

65009.  

(a) (1) The Legislature finds and declares that there
2currently is a housing crisis in California and it is essential to
3reduce delays and restraints upon expeditiously completing housing
4projects.

5(2) The Legislature further finds and declares that a legal action
6or proceeding challenging a decision of a city, county, or city and
7county has a chilling effect on the confidence with which property
8owners and local governments can proceed with projects. Legal
9actions or proceedings filed to attack, review, set aside, void, or
10annul a decision of a city, county, or city and county pursuant to
11this division, including, but not limited to, the implementation of
12 general plan goals and policies that provide incentives for
13affordable housing, open-space and recreational opportunities, and
14other related public benefits, can prevent the completion of needed
15developments even though the projects have received required
16governmental approvals.

17(3) The purpose of this section is to provide certainty for
18property owners and local governments regarding decisions made
19pursuant to this division.

20(b) (1) In an action or proceeding to attack, review, set aside,
21void, or annul a finding, determination, or decision of a public
22agency made pursuant to this title at a properly noticed public
23hearing, the issues raised shall be limited to those raised in the
24public hearing or in written correspondence delivered to the public
25 agency prior to, or at, the public hearing, except where the court
26finds either of the following:

27(A) The issue could not have been raised at the public hearing
28by persons exercising reasonable diligence.

29(B) The body conducting the public hearing prevented the issue
30from being raised at the public hearing.

31(2) If a public agency desires the provisions of this subdivision
32to apply to a matter, it shall include in any public notice issued
33pursuant to this title a notice substantially stating all of the
34following: “If you challenge the (nature of the proposed action)
35in court, you may be limited to raising only those issues you or
36someone else raised at the public hearing described in this notice,
37or in written correspondence delivered to the (public entity
38conducting the hearing) at, or prior to, the public hearing.”

39(3) The application of this subdivision to causes of action
40brought pursuant to subdivision (d) applies only to the final action
P4    1taken in response to the notice to the city or clerk of the board of
2supervisors. If no final action is taken, then the issue raised in the
3cause of action brought pursuant to subdivision (d) shall be limited
4to those matters presented at a properly noticed public hearing or
5to those matters specified in the notice given to the city or clerk
6of the board of supervisors pursuant to subdivision (d), or both.

7(c) (1) Except as provided in subdivision (d), no action or
8proceeding shall be maintained in any of the following cases by
9any person unless the action or proceeding is commenced and
10service is made on the legislative body within 90 days after the
11legislative body’s decision:

12(A) To attack, review, set aside, void, or annul the decision of
13a legislative body to adopt or amend a general or specific plan.
14This paragraph does not apply where an action is brought based
15upon the complete absence of a general plan or a mandatory
16element thereof, but does apply to an action attacking a general
17plan or mandatory element thereof on the basis that it is inadequate.

18(B) To attack, review, set aside, void, or annul the decision of
19a legislative body to adopt or amend a zoning ordinance.

20(C) To determine the reasonableness, legality, or validity of any
21decision to adopt or amend any regulation attached to a specific
22plan.

23(D) To attack, review, set aside, void, or annul the decision of
24a legislative body to adopt, amend, or modify a development
25agreement. An action or proceeding to attack, review, set aside,
26void, or annul the decisions of a legislative body to adopt, amend,
27or modify a development agreement shall only extend to the
28specific portion of the development agreement that is the subject
29of the adoption, amendment, or modification. This paragraph
30applies to development agreements, amendments, and
31modifications adopted on or after January 1, 1996.

32(E) To attack, review, set aside, void, or annul any decision on
33the matters listed in Sections 65901 and 65903, or to determine
34the reasonableness, legality, or validity of any condition attached
35to a variance, conditional use permit, or any other permit.

36(F) Concerning any of the proceedings, acts, or determinations
37taken, done, or made prior to any of the decisions listed in
38subparagraphs (A), (B), (C), (D), and (E).

39(2) In the case of an action or proceeding challenging the
40adoption or revision of a housing element pursuant to this
P5    1 subdivision, the action or proceeding may, in addition, be
2maintained if it is commenced and service is made on the
3legislative body within 60 days following the date that the
4Department of Housing and Community Development reports its
5findings pursuant to subdivision (h) of Section 65585.

6(d) (1) begin deleteExcept as provided in paragraph (2), an end deletebegin insertAn end insertaction or
7proceeding shall be commenced and the legislative body served
8begin delete within one yearend delete after the accrual of the cause of action as provided
9in this subdivision, if the action or proceeding meets both of the
10 following requirements:

11 (A) It is brought in support of or to encourage or facilitate the
12development of housing that would increase the community’s
13supply of housing affordable to persons and families with low or
14moderate incomes, as defined in Section 50079.5 of the Health
15and Safety Code, or with very low incomes, as defined in Section
1650105 of the Health and Safety Code, or middle-income
17households, as defined in Section 65008 of this code. This
18subdivision is not intended to require that the action or proceeding
19be brought in support of or to encourage or facilitate a specific
20housing development project.

21 (B) It is brought with respect tobegin delete actions takenend deletebegin insert the adoption or
22revision of a housing elementend insert
pursuant to Article 10.6 (commencing
23with Section 65580) of Chapter 3,begin insert actions taken pursuant toend insert Section
2465863.6, or Chapter 4.2 (commencing with Section 65913), or to
25challenge the adequacy of an ordinance adopted pursuant to Section
2665915.

27(2) begin insert(A)end insertbegin insertend insert An action or proceeding challenging the adoption or
28revision of a housing element that the Department of Housing and
29Community Development has found to substantially comply with
30the requirements of Article 10.6 (commencing with Section 65580)
31of Chapter 3 shall be commenced, and the legislative body shall
32be served, within six months after the accrual of the cause of action
33as provided in this subdivision.

34begin insert(B)end insertbegin insertend insertbegin insertAn action or proceeding challenging the adoption or revision
35of a housing element that the Department of Housing and
36Community Development has found does not substantially comply
37with the requirements of Article 10.6 (commencing with Section
3865580) of Chapter 3, where the legislative body has failed to
39change the draft element or amendment to substantially comply
40with the requirements of Article 10.6 or has adopted the draft
P6    1element or amendment without change and made findings pursuant
2to subdivision (f) of Section 65585, shall be commenced, and the
3legislative body shall be served, within one year after the accrual
4of the cause of action as provided in this subdivision.end insert

begin insert

5(C) An action or proceeding challenging an action taken
6pursuant to Section 65863.6, or Chapter 4.2 (commencing with
7Section 65913), or to challenge the adequacy of an ordinance
8adopted pursuant to Section 65915 shall be served within 180 days
9after the accrual of the cause of action as provided in this
10subdivision.

end insert

11(3) (A) A cause of action brought pursuant to this subdivision
12shall not be maintained until 60 days have expired following notice
13to the city or clerk of the board of supervisors by the party bringing
14the cause of action, or his or her representative, specifying the
15deficiencies of the general plan, specific plan,begin delete orend delete zoning ordinancebegin insert, end insert
16begin insertor other action described in subparagraph (B) of paragraph (1)end insert.
17A cause of action brought pursuant to this subdivision shall accrue
1860 days after notice is filed or the legislative body takes a final
19action in response to the notice, whichever occurs first.

20(B) This notice may be filed at any time withinbegin delete three yearsend deletebegin insert 270
21daysend insert
after an action described in subparagraphbegin delete (B) of paragraph
22(1), except that, if the notice specifies a deficiency in an adopted
23or revised housing element that has been found to substantially
24comply with the requirements of Article 10.6 (commencing with
25Section 65580) of Chapter 3, the notice may be filed at any time
26within 270 days after the action to revise or adopt the housing
27element.end delete
begin insert (A) of paragraph (2), two years after an action described
28in subparagraph (B) of paragraph (2), or 180 days after an action
29described in subparagraph (C) of paragraph (2)end insert
begin insert.end insert

30(4) A notice or cause of action brought by one party pursuant
31to this subdivision shall not bar filing of a notice and initiation of
32 a cause of action by any other party.

33(5) After the adoption of a housing element covering the current
34planning period, no action shall be filed pursuant to this subdivision
35to challenge a housing element covering a prior planning period.

36(e) Upon the expiration of the time limits provided for in this
37section, all persons are barred from any further action or
38proceeding.

39(f) Notwithstanding Sections 65700 and 65803, or any other
40provision of law, this section shall apply to charter cities.

P7    1(g) Except as provided in subdivision (d), this section shall not
2affect any law prescribing or authorizing a shorter period of
3limitation than that specified herein.

4(h) Except as provided in paragraph (4) of subdivision (c), this
5section shall be applicable to those decisions of the legislative
6body of a city, county, or city and county made pursuant to this
7division on or after January 1, 1984.

begin delete
8

SEC. 3.  

Section 65589.3 of the Government Code is amended
9to read:

10

65589.3.  

(a)  In any action filed on or after January 1, 1991,
11taken to challenge the validity of a housing element, there shall
12be a rebuttable presumption of the validity of the element or
13amendment if, pursuant to Section 65585, the department has found
14that the element or amendment substantially complies with the
15requirements of this article.

16(b) In any action brought against a city, county, or city and
17county to challenge the adequacy of a housing element, if a court
18finds that the adopted housing element or amended housing element
19for the current planning period substantially complies with all of
20the requirements of this article, including, but not limited to, the
21requirements for public participation set forth in paragraph (7) of
22subdivision (c) of Section 65583, the element or amendment shall
23be deemed to satisfy any condition of a state-administered housing
24grant program requiring a department finding that the housing
25element substantially complies with the requirements of this article.

end delete
26begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 65587 of the end insertbegin insertGovernment Codeend insertbegin insert is amended to
27read:end insert

28

65587.  

(a) Each city, county, or city and county shall bring
29its housing element, as required by subdivision (c) of Section
3065302, into conformity with the requirements of this article on or
31before October 1, 1981, and the deadlines set by Section 65588.
32Except as specifically provided in subdivision (b) of Section 65361,
33the Director of Planning and Research shall not grant an extension
34of time from these requirements.

35(b) Any action brought by any interested party to review the
36conformity with the provisions of this article of any housing
37element or portion thereof or revision thereto shall be brought
38pursuant to Section 1085 of the Code of Civil Procedure; the
39court’s review of compliance with the provisions of this article
40 shall extend to whether the housing element or portion thereof or
P8    1revision thereto substantially complies with the requirements of
2this article.

3(c) If a court finds that an action of a city, county, or city and
4county, which is required to be consistent with its general plan,
5does not comply with its housing element, the city, county, or city
6and county shall bring its action into compliance within 60 days.
7However, the court shall retain jurisdiction throughout the period
8for compliance to enforce its decision. Upon the court’s
9determination that the 60-day period for compliance would place
10an undue hardship on the city, county, or city and county, the court
11may extend the time period for compliance by an additional 60
12days.

13(d) (1) If a court finds that a city, county, or city and county
14failed to complete the rezoning required by subparagraph (A) of
15 paragraph (1) of subdivision (c) of Section 65583, as that deadline
16may be modified by the extension provided for in subdivision (f)
17of that section, the court shall issue an order or judgment, after
18considering the equities of the circumstances presented by all
19parties, compelling the local government to complete the rezoning
20within 60 days or the earliest time consistent with public hearing
21notice requirements in existence at the time the action was filed.
22The court shall retain jurisdiction to ensure that its order or
23judgment is carried out. If the court determines that its order or
24judgment is not carried out, the court shall issue further orders to
25ensure that the purposes and policies of this article are fulfilled,
26including ordering, after considering the equities of the
27circumstances presented by all parties, that any rezoning required
28by subparagraph (A) of paragraph (1) of subdivision (c) of Section
2965583 be completed within 60 days or the earliest time consistent
30with public hearing notice requirements in existence at the time
31the action was filed and may impose sanctions on the city, county,
32or city and county.

33(2) Any interested person may bring an action to compel
34compliance with the deadlines and requirements of paragraphs (1),
35(2), and (3) of subdivision (c) of Section 65583. The action shall
36be brought pursuant to Section 1085 of the Code of Civil
37Procedure.begin delete An action may be brought pursuant to the notice and
38accrual provisions of subdivision (d) of Section 65009.end delete
In any such
39action, the city, county, or city and county shall bear the burden
40of proof.

P9    1

SEC. 4.  

Section 65755 of the Government Code is amended
2to read:

3

65755.  

(a) The court shall include, in the order or judgment
4rendered pursuant to Section 65754, one or more of the following
5provisions for any or all types or classes of developments or any
6or all geographic segments of the city, county, or city and county
7until the city, county, or city and county has substantially complied
8with the requirements of Article 5 (commencing with Section
965300):

10(1) Suspend the authority of the city, county, or city and county
11pursuant to Division 13 (commencing with Section 17910) of the
12Health and Safety Code, to issue building permits, or any category
13of building permits, and all other related permits, except that the
14city, county, or city and county shall continue to function as an
15enforcement agency for review of permit applications for
16appropriate codes and standards compliance, prior to the issuance
17of building permits and other related permits for residential housing
18for that city, county, or city and county.

19(2) Suspend the authority of the city, county, or city and county,
20pursuant to Chapter 4 (commencing with Section 65800) to grant
21any and all categories of zoning changes, variances, or both.

22(3) Suspend the authority of the city, county, or city and county,
23pursuant to Division 2 (commencing with Section 66410), to grant
24subdivision map approvals for any and all categories of subdivision
25map approvals.

26(4) Mandate the approval of all applications for building permits,
27or other related construction permits, for residential housing where
28a final subdivision map, parcel map, or plot plan has been approved
29for the project, where the approval will not impact on the ability
30of the city, county, or city and county to properly adopt and
31implement an adequate housing element, and where the permit
32application conforms to all code requirements and other applicable
33provisions of law except those zoning laws held to be invalid by
34the final court order, and changes to the zoning ordinances adopted
35after such final court order which were enacted for the purpose of
36preventing the construction of a specific residential development.

37(5) Mandate the approval of any or all final subdivision maps
38for residential housing projects which have previously received a
39tentative map approval from the city, county, or city and county
40pursuant to Division 2 (commencing with Section 66410) when
P10   1the final map conforms to the approved tentative map, the tentative
2map has not expired, and where approval will not impact on the
3 ability of the city, county, or city and county to properly adopt and
4implement an adequate housing element.

5(6) Mandate that notwithstanding the provisions of Sections
666473.5 and 66474, any tentative subdivision map for a residential
7housing project shall be approved if all of the following
8requirements are met:

9(A) The approval of the map will not significantly impair the
10ability of the city, county, or city and county to adopt and
11implement those elements or portions thereof of the general plan
12which have been held to be inadequate.

13(B) The map complies with all of the provisions of Division 2
14(commencing with Section 66410), except those parts which would
15require disapproval of the project due to the inadequacy of the
16general plan.

17(C) The approval of the map will not affect the ability of the
18city, county, or city and county to adopt and implement an adequate
19housing element.

20(D) The map is consistent with the portions of the general plan
21not found inadequate and the proposed revisions, if applicable, to
22the part of the plan held inadequate.

23(b) Any order or judgment of a court which includes the
24remedies described in paragraphs (1), (2), or (3) of subdivision (a)
25shall exclude from the operation of that order or judgment any
26action, program, or project required by law to be consistent with
27a general or specific plan if the court finds that the approval or
28undertaking of the action, program, or project complies with both
29of the following requirements:

30(1) That it will not significantly impair the ability of the city,
31county, or city and county to adopt or amend all or part of the
32applicable plan as may be necessary to make the plan substantially
33comply with the requirements of Article 5 (commencing with
34Section 65300) in the case of a general plan, or Article 8
35(commencing with Section 65450) in the case of a specific plan.

36(2) That it is consistent with those portions of the plan
37challenged in the action or proceeding and found by the court to
38substantially comply with applicable provisions of law.

39The party seeking exclusion from any order or judgment of a
40court pursuant to this subdivision shall have the burden of showing
P11   1that the action, program, or project complies with paragraphs (1)
2and (2).

3(c) Notwithstanding Section 65754.4 or subdivisions (a) and
4(b), in any action or proceeding brought pursuant to subdivision
5(d) of Section 65009, no remedy pursuant to this section or
6injunction pursuant to Section 65754.5 shall abrogate, impair, or
7otherwise interfere with the full exercise of the rights and
8protections granted to (1) an applicant for a tentative map pursuant
9to Section 66474.2, or (2) a developer pursuant to Sections 65866
10and 66498.1.



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