BILL NUMBER: AB 325 CHAPTERED
BILL TEXT
CHAPTER 767
FILED WITH SECRETARY OF STATE OCTOBER 12, 2013
APPROVED BY GOVERNOR OCTOBER 12, 2013
PASSED THE SENATE SEPTEMBER 10, 2013
PASSED THE ASSEMBLY SEPTEMBER 11, 2013
AMENDED IN SENATE SEPTEMBER 6, 2013
AMENDED IN ASSEMBLY MAY 29, 2013
INTRODUCED BY Assembly Member Alejo
(Coauthor: Assembly Member Ammiano)
FEBRUARY 13, 2013
An act to amend Sections 65009, 65587, and 65755 of the Government
Code, relating to land use.
LEGISLATIVE COUNSEL'S DIGEST
AB 325, Alejo. Land use and planning: cause of actions: time
limitations.
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, 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 within
180 days after specified zoning and planning decisions, 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, and a
2-year period for notice with respect to an adopted or revised
housing element that is found not 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, 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 period. 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 to these provisions,
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. The bill would make further conforming
changes.
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) An action or proceeding shall be commenced and the
legislative body served after the accrual of the cause of action as
provided in this subdivision, 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 the adoption or revision of a
housing element pursuant to Article 10.6 (commencing with Section
65580) of Chapter 3, actions taken pursuant to Section 65863.6, or
Chapter 4.2 (commencing with Section 65913), or to challenge the
adequacy of an ordinance adopted pursuant to Section 65915.
(2) (A) 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.
(B) An action or proceeding challenging the adoption or revision
of a housing element that the Department of Housing and Community
Development has found does not substantially comply with the
requirements of Article 10.6 (commencing with Section 65580) of
Chapter 3, where the legislative body has failed to change the draft
element or amendment to substantially comply with the requirements of
Article 10.6 or has adopted the draft element or amendment without
change and made findings pursuant to subdivision (f) of Section
65585, shall be commenced, and the legislative body shall be served,
within one year after the accrual of the cause of action as provided
in this subdivision.
(C) An action or proceeding challenging an action taken pursuant
to Section 65863.6, or Chapter 4.2 (commencing with Section 65913),
or to challenge the adequacy of an ordinance adopted pursuant to
Section 65915 shall be served within 180 days after the accrual of
the cause of action as provided in this subdivision.
(3) (A) 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,
zoning ordinance, or other action described in subparagraph (B) of
paragraph (1). 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.
(B) This notice may be filed at any time within 270 days after an
action described in subparagraph (A) of paragraph (2), two years
after an action described in subparagraph (B) of paragraph (2), or
180 days after an action described in subparagraph (C) of paragraph
(2).
(4) A 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.
(5) 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 65587 of the Government Code is amended to read:
65587. (a) Each city, county, or city and county shall bring its
housing element, as required by subdivision (c) of Section 65302,
into conformity with the requirements of this article on or before
October 1, 1981, and the deadlines set by Section 65588. Except as
specifically provided in subdivision (b) of Section 65361, the
Director of Planning and Research shall not grant an extension of
time from these requirements.
(b) Any action brought by any interested party to review the
conformity with the provisions of this article of any housing element
or portion thereof or revision thereto shall be brought pursuant to
Section 1085 of the Code of Civil Procedure; the court's review of
compliance with the provisions of this article shall extend to
whether the housing element or portion thereof or revision thereto
substantially complies with the requirements of this article.
(c) If a court finds that an action of a city, county, or city and
county, which is required to be consistent with its general plan,
does not comply with its housing element, the city, county, or city
and county shall bring its action into compliance within 60 days.
However, the court shall retain jurisdiction throughout the period
for compliance to enforce its decision. Upon the court's
determination that the 60-day period for compliance would place an
undue hardship on the city, county, or city and county, the court may
extend the time period for compliance by an additional 60 days.
(d) (1) If a court finds that a city, county, or city and county
failed to complete the rezoning required by subparagraph (A) of
paragraph (1) of subdivision (c) of Section 65583, as that deadline
may be modified by the extension provided for in subdivision (f) of
that section, the court shall issue an order or judgment, after
considering the equities of the circumstances presented by all
parties, compelling the local government to complete the rezoning
within 60 days or the earliest time consistent with public hearing
notice requirements in existence at the time the action was filed.
The court shall retain jurisdiction to ensure that its order or
judgment is carried out. If the court determines that its order or
judgment is not carried out, the court shall issue further orders to
ensure that the purposes and policies of this article are fulfilled,
including ordering, after considering the equities of the
circumstances presented by all parties, that any rezoning required by
subparagraph (A) of paragraph (1) of subdivision (c) of Section
65583 be completed within 60 days or the earliest time consistent
with public hearing notice requirements in existence at the time the
action was filed and may impose sanctions on the city, county, or
city and county.
(2) Any interested person may bring an action to compel compliance
with the deadlines and requirements of paragraphs (1), (2), and (3)
of subdivision (c) of Section 65583. The action shall be brought
pursuant to Section 1085 of the Code of Civil Procedure. In any such
action, the city, county, or city and county shall bear the burden of
proof.
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.