BILL ANALYSIS �
AB 325
Page 1
Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 325 (Alejo) - As Introduced: February 13, 2013
SUBJECT : Land use and planning: cause of actions: time
limitations.
SUMMARY : Allows up to three years after certain city or county
actions, including the adoption of a housing element, for a
party to initiate a challenge to the action if it is being
brought "in support of or to encourage or facilitate the
development of housing that would increase the community's
supply of [affordable] housing."
Specifically, this bill :
1)States 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
Section 65009 of the Government Code.
2)Provides that an entity initiating a challenge in support of
affordable housing to 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.
3)Provides that after 60 days or the date on which the city or
county takes final action in response to the deficiency
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.
4)Removes from the current list of city or county actions that a
party may challenge pursuant to the notice and accrual
provision described above those actions related to the Housing
Accountability Act, the Subdivision Map Act, and the
application of a Density Bonus ordinance to a particular
project, all of which are project-specific actions.
5)Clarifies that in any action brought pursuant to the notice
AB 325
Page 2
and accrual provisions described above, no legal remedy or
injunction pursuant to 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.
6)Provides that a housing element from a prior planning period
may not be challenged if the city or county has adopted
housing element for the new planning period.
7)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.
EXISTING LAW
1)Under the Planning and Zoning Law, specifies that "except as
provided under 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;
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
AB 325
Page 3
development agreement;
e) To attack, review, set aside, void, or annul any
decision related to applications for conditional use
permits and variances, 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 above.
[Government Code Section 65009(c)]
2)Specifies that in the case of an action or proceeding
challenging the adoption or revision of a housing element, 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 (HCD) reports its findings on a
jurisdiction's adopted housing element or adopted amendments
to a housing element [Government Code Section 65009(c)].
3)Under Government Code Section 65009(d), provides that an
action or proceeding shall be commenced and the legislative
body served within one year after the accrual of the cause of
action, 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; and
b) It is brought with respect to actions taken pursuant to
Housing Element Law, the Housing Accountability Act, the
Subdivision Map Act, Density Bonus Law, or a housing
development approval.
AB 325
Page 4
[Government Code Section 65009(d)]
4)Specifies that a cause of action brought pursuant to
Government Code Section 65509(d) shall not be maintained until
60 days have expired following notice to the city or county
specifying the deficiencies, and specifies that a cause of
action brought pursuant to subdivision (d) shall accrue 60
days after notice is filed or the legislative body takes a
final action in response to the notice, whichever occurs first
[Government Code Section 65009(d)].
5)Provides that in any action filed on or after January 1, 1991,
to challenge the validity of a housing element, there shall be
a rebuttable presumption of the validity of the element or
amendment if the HCD has found that the element substantially
complies with the requirements of the law (Government Code
Section 65589.3).
6)Requires a court, if it finds any portion of a general plan,
including a housing element, out of compliance with the law,
to include within its order or judgment one or more of the
following remedies for any or all types of developments or any
or all geographic segments
of the city or county until the city or county has complied with
the law, including;
a) Suspension of the city or county's authority to issue
building permits;
b) Suspension of the city or county's authority to grant
zoning changes and/or variances;
c) Suspension of the city or county's authority to grant
subdivision map approvals;
d) Mandating the approval of building permits for
residential housing that meet specified criteria;
e) Mandating the approval of final subdivision maps for
housing projects that meet specified criteria; and
f) Mandating the approval of tentative subdivision maps for
residential housing projects that meet specified criteria.
AB 325
Page 5
(Government Code Section 65009)
FISCAL EFFECT : None
COMMENTS :
Background: 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 statutory 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 is assigned its fair share
of housing for each income category through the regional housing
needs assessment (RHNA) process. In its housing element, a
jurisdiction must identify and analyze existing and projected
housing needs, identify adequate sites with appropriate zoning
to accommodate its share of the RHNA, and ensure that regulatory
systems provide opportunities for, and do not unduly constrain,
housing 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:
The Housing Accountability Act, which requires a city or
county to make one or more specified findings in order to
disapprove an affordable housing project.
A provision requiring cities and counties, when adopting an
ordinance that 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.
AB 325
Page 6
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.
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.
A requirement that, when determining whether to approve a
tentative subdivision map, a city or county apply only those
ordinances, policies, and standards in effect as of the date
the developer's application is deemed complete.
Current law provides 90 days to challenge a variety of local
government actions, including the adoption or amendment of a
general plan or specific plan, the adoption or amendment of a
zoning ordinance, the adoption or amendment of any regulation
attached to a specific plan, the adoption or amendment of a
development agreement, and decisions related to applications for
conditional use permits and zoning variances. This 90-day limit
is set forth in Government Code Section 65009(c), which also
specifies that the 90 days applies "except as provided in
subdivision (d)."
Subdivision (d) relates to certain actions that are brought "in
support of or to encourage or facilitate the development of
housing that would increase the community's supply of
[affordable] housing." Those actions include the adoption or
amendment of a housing element. Under (d), the challenging party
is required first 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 has one year to file the action in court. This
process and statute of limitations is known as the "notice and
accrual provision" and also applies challenges in support of
affordable housing to actions related to the housing-related
statutes listed above. Subdivsion (d) is silent on when the
deficiency notice must be filed, and the prevailing
interpretation prior to a 2008 court decision was that the lack
of a specified timeframe meant that a party could challenge the
adequacy of a city's or county's housing element at any time
AB 325
Page 7
during the housing element planning period. At the time, the
housing element planning period was five years for all
jurisdictions.
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 [a 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
a housing element at any time during the planning period,
housing advocates and other interested parties now only may
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
created both the 90-day statute of limitations for most land use
decisions and the specific exception related to challenges to
housing elements and other specific actions if the challenge was
brought in support of affordable housing. In the 25 years
between the passage of AB 998 and the Urban Habitat ruling,
housing advocates filed and successfully settled at least eleven
cases in which the 60-day deficiency notice was sent more than
90 days after adoption of the city's or county's housing
AB 325
Page 8
element. In none of these cases was the timeliness of the suit
contested. Likewise, six bills amended other portions of this
statute during those intervening years, and there was never any
controversy surrounding the lack of a deadline for housing
advocates to serve a deficiency notice nor any attempt to change
the statute in this regard.
Purpose of the Bill: According to the author, AB 325 has been
introduced to modify the court's opinion in Urban Habitat. AB
325 allows an entity challenging specified city or county
actions, including the adoption of a housing element, where the
challenge is brought in support of affordable housing, to serve
the deficiency notice up to three years after the city's or
county's action. The bill does not change the existing notice
and accrual provisions. Cities and counties would still have 60
days to take a final action in response to the notice, and the
challenging party would still have one year after the city's or
county's final action in response to the notice to file an
action in court.
Current law (Government Code Section 65009) requires a court, if
it finds any portion of a general plan, including a housing
element, out of compliance with the law, to include within its
order or judgment one or more of the following remedies for any
or all types of developments or any or all geographic segments
of the city or county until the city or county has complied with
the law:
Suspend the authority of the city or county to issue
building permits.
Suspend the authority of the city or county to grant
zoning changes and/or variances.
Suspend the authority of the city or county to grant
subdivision map approvals.
Mandate the approval of building permits for residential
housing that meet specified criteria.
Mandate the approval of final subdivision maps for
housing projects that meet specified criteria.
Mandate the approval of tentative subdivision maps for
residential housing projects that meet specified criteria.
AB 325
Page 9
AB 325 clarifies that in any action or proceeding brought
pursuant to the notice and accrual provisions of Government Code
Section 65009, neither the court remedies described above 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.
Under current law, HCD operates a number of grant programs to
which cities and counties may apply. In many cases, the law
requires a city or county to have an HCD-approved housing
element in order to be eligible for funding. AB 325 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.
Arguments in Support: According to the sponsors of AB 325, the
California Rural Legal Assistance Foundation, Housing
California, and the Western Center on Law and Poverty,
"Deficiencies in a housing element may only come to light when
the plan is implemented, e.g. when an affordable development is
proposed or a domestic violence or homeless shelter looks to
open its doors. The old law, part of legislation sponsored by
the League of California Cities in 1983, recognized that any
harm or deficiency might not be known until a development was
undertaken. That law allowed citizens to send a deficiency
notice to the local government at any point during the planning
period, and then bring suit if the locality did not fix its
housing element. Far from opening a floodgate for litigation,
only 11 suits were brought in 25 years. The simple existence of
a real accountability mechanism spurred local governments to
address the housing needs of all residents and obey the law."
Arguments in Opposition: Opponents, including the California
Chapter of the American Planning Association, the League of
California Cities, the Rural County Representatives of
California, and the California State Association of Counties,
argue that AB 325 "does not differentiate between major
noncompliance with state law or a small difference in
interpretation and targets jurisdictions that have made a major
AB 325
Page 10
effort to comply with the housing element law." Opponents argue
that the three-year statute of limitations creates too much
uncertainty for local agencies and could lead to an increase in
costly litigation at a time when state and local resources are
limited. They additionally argue that the appropriate time for
interested citizens to become involved with a community's
housing element is when it is adopted, not three years later,
and that there is ample opportunity for interested parties to
engage prior to adoption given that Housing Element Law
specially requires outreach and public participation.
Staff Comments: Currently, 80% of all cities and counties have
adopted a housing element that HCD has found to be in
substantial compliance with the law. Another 10% have housing
elements that are currently under review by HCD. The remaining
10% have either never submitted a housing element to HCD for
review for the current planning period, have submitted a draft
to HCD but have not adopted the element, or have adopted a
housing element that HCD has found does not substantially comply
with the requirements of the law. Current law establishes a
rebuttable presumption of validity for a housing element that
HCD has found to be in substantial compliance with the law.
While it is true that a city or county can be sued over its
adopted housing element whether or not HCD has found it to be
compliance, the rebuttable presumption provides a high bar in
terms of challenging an HCD-approved element. As far as staff is
aware, only one suit has ever been brought against a housing
element that HCD had found to be in substantial compliance with
the law. Thus, realistically it is only the small minority of
jurisdictions that HCD has found are not in compliance that is
at risk of a lawsuit.
There are compelling reasons to provide a longer enforcement
period for housing elements. The state generally does not
enforce housing element law or other affordable housing laws
directly. Enforcement relies on local governments' voluntary
compliance with the possibility of citizen enforcement action,
most often by affordable housing advocacy groups. There are not
many of these nonprofit organizations in the state and their
resources are always spread 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
AB 325
Page 11
California Association of Governments, for instance, includes
200 jurisdictions, all of which must adopt their next housing
element by October 15, 2013. As long as housing element law 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. While prior to the Pleasanton case it was widely
agreed that a challenge could be filed at any point during the
housing element planning period, this bill offers a compromise
by allowing potential challengers to serve a deficiency notice
only within three years of adoption of the housing element.
In addition, in 2006, the Legislature enacted AB 32 (Nu�ez),
Chapter 488, the Global Warming Act of 2006, which requires the
Air Resources Board to establish a statewide greenhouse gas
emissions limit such that by 2020 California reduces its
greenhouse gas emissions to the level they were in 1990. One of
the key strategies to achieve the AB 32 mandate is to promote
more compact forms of development in California. In 2008, the
Legislature enacted SB 375 (Steinberg), Chapter 728, which
requires the Air Resources Board to provide each major region of
the state with greenhouse gas emission reduction targets for the
automobile and light truck sector and requires the regional
transportation plan to include a Sustainable Communities
Strategy (SCS), including a regional land use plan, designed to
achieve the targets for greenhouse gas emission reduction.
Regional transportation planning agencies, however, do not have
land use powers. Achieving the land use vision laid out in the
SCS relies on cities and counties altering their general plans
and zoning ordinances to allow the types of development the SCS
contemplates. These city and county actions are voluntary,
however. SB 375 contains no requirement for a city or county to
conform its land use plans to the SCS.
Because a region's RHNA allocation must be consistent with the
SCS, because housing element law requires cities and counties to
identify adequately zones sites or rezone land to accommodate
lower-income housing, and because density is the proxy for
affordability, Housing Element Law is currently the only tool to
get cities and counties to increase allowable housing densities
needed to achieve the SB 375 regional greenhouse gas emission
reduction targets. Without an effective way to enforce housing
element law, the only tool to effectively ensure implementation
of
AB 325
Page 12
SB 375 at the local level is lost.
Previous Legislation: This bill is identical to AB 1220 (Alejo,
2011), which was vetoed by Governor Brown with the following
veto message:
"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."
The bill is also substantially similar to AB 602 (Feuer, 2010).
That bill was vetoed by Governor Schwarzenegger.
Double-Referred: This bill was also referred to the Local
Government Committee, where it will be heard should it pass out
of this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance Foundation (co-sponsor)
Housing California (co-sponsor)
Western Center on Law and Poverty (co-sponsor)
California Association of Realtors
California Coalition for Rural Housing
Non-Profit Housing Association of Northern California
Public Advocates
Opposition
American Planning Association, California Chapter
California State Association of Counties
Cities of Alameda, Alhambra, Burbank, Encinitas, Fremont,
Fresno, Lakewood, Lathrop, Ontario, Rancho Cucamonga,
Reedley, Santa Monica, Thousand Oaks, Torrance, Tulare, and
Wasco
Civil Justice Association of California
Counties of Orange and Sacramento
League of California Cities
Rural County Representatives of California
Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
AB 325
Page 13
319-2085