BILL ANALYSIS �
AB 325
Page 1
Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 325 (Alejo) - As Introduced: February 13, 2013
SUBJECT : Land use and planning: cause of actions: time
limitations.
SUMMARY : Revises the statute of limitations and remedies for
specified housing-related challenges. 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
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
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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 a
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)Requires each city, county, or city and county to prepare and
adopt a general plan for its jurisdiction that contains
certain mandatory elements, including a housing element.
2)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.
3)Requires, when determining whether to approve a tentative
subdivision map, a city or county shall apply to only those
ordinances, policies, and standards in effect as of the date
the developer's application is deemed complete.
4)Requires 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.
5)Requires a city or county to make one or more specified
findings in order to disapprove a particular housing
development.
6)States that 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, 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
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which property owners and local governments can proceed with
projects.
7)Finds and declares that legal actions or proceedings filed to
attack, review, set aside, void, or annul a decision of,
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.
8)States that the purpose of Section 65009 of the Government
Code is to provide certainty for property owners and local
governments regarding decisions made pursuant to Planning and
Zoning laws.
9)Provides than 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 on the
Housing Element, Housing Accountability Act, Subdivision
Map Act, Density Bonus, or housing development approval.
10)Provides that a cause of action 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.
11)Provides that a cause of action shall accrue 60 days after
notice is filed or the legislative body takes a final action
in response to the notice, whichever occurs first.
12)Provides that 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
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element or amendment if, after the Department of Housing and
Community Development (HCD) reviews the housing element and
finds the element or amendment substantially complies with the
requirements of this article.
13)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.
14)Requires that rezoning of sites needed to meet Regional
Housing Needs Assessment (RHNA) requirements, including
adoption of minimum density and development standards, shall
be completed no later than three years after either the date
the housing element is adopted or the date that is 90 days
after receipt of comments from HCD, whichever is earlier,
unless this deadline is extended, as specified.
FISCAL EFFECT : None
COMMENTS :
1)This bill declares the intent to modify the court's opinion in
Urban Habitat Program v. City of Pleasanton, 116 Cal. App. 4th
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1561 (2008), and to revise and clarify statute of limitations
and remedies for specified housing-related challenges. 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
affordable housing obligation. In 2008, the appellate court
threw out the challenge and the court opined:
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.
(Urban Habitat Program v. City of Pleasanton, 116 Cal. App.
4th 1561 (2008).) In other words, housing advocates and other
interested parties may only initiate such a challenge by
submitting a deficiency notice within 90 days of the housing
element's adoption.
2)AB 325 revises the statute of limitations and certain remedies
for specified housing-related challenges. AB 998 (Waters),
Chapter 1138, Statutes of 1983, put in place 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, a measure which was
sponsored by the League of California Cities (League) and the
California Building Industry Association (CBIA). AB 998
specified, for challenges in support of low- and
moderate-income housing requirements, that the petitioner
shall notice local government 60 days prior to filing action,
and that the [one-year] statute of limitations would then
begin on the first day that the legislative body fails to act.
Since that time, and prior to the Urban Habitat ruling in
2008, housing advocates have filed and successfully settled at
least 11 cases in which the 60-day deficiency notice was sent
more than 90 days after adoption of the city's or county's
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housing element. In none of these cases was the timeliness on
the advocates' suit contested.
Instead, AB 325 allows an entity challenging such an action in
support of affordable housing to serve the deficiency notice
up to three years after the city's or county's action. 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 clarifies that in an action or proceeding brought
pursuant to the notice and accrual provisions relating to
housing development approval, annual limits on housing
permits, and the adequacy of a density bonus ordinance, that
neither the court remedies 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 a completed tentative map application,
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or a vested tentative map under the Subdivision Map Act.
1)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. Additionally,
AB 325 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.
2)SB 375 (Steinberg), Chapter 728, Statutes of 2008, links
together housing policy, land use and transportation planning,
and environmental review with climate policy, with the intent
of reducing greenhouse gas emissions through the development of
a sustainable communities strategy (SCS), thus setting up a
process to help achieve the goals of the Global Warming
Solutions Act of 2006 [AB 32 (Nu�ez), Chapter 488, Statutes of
2006]. Prior to SB 375, local governments were required to
revise their housing elements every five years. The Regional
Housing Needs Assessment (RHNA) process was also on a
five-year schedule. However, most metropolitan planning
organizations (MPOs) adopt a regional transportation plan
(RTP) every four years pursuant to federal law, meaning that
the planning for housing and transportation rarely occurs at
the same. SB 375 aligned these processes by creating an
eight-year housing element cycle, meaning that one RHNA
planning period will equal two RTP planning periods.
The alignment provisions contained in SB 375 took effect for
the fifth revision of the housing element for local
governments. Under the provisions of SB 375, once the local
government receives its RHNA allocation (and adopts an RTP at
the same time), it then has 18 months to prepare its housing
element and submit it to HCD - beginning with the first RTP to
be adopted after September 30, 2010. Those local governments
that fail to submit a housing element to HCD within the
18-month timeline would fall out of the eight-year housing
element cycle and are then required to submit their housing
element every four years to HCD. SB 375 also requires local
governments to ensure that zoning is done on time with a
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60-day resolution, a three-year statute of limitations to
target specific actions that are inconsistent with state law,
and a process to challenge local agencies if they do not meet
deadlines for implementation contained in their housing
elements.
Since several counties in the state are rural and will still
operate under a five-year housing element period, AB 325 would
allow those counties to be under legal threat on their housing
elements throughout much of their planning period. Those
jurisdictions that, under the provisions of SB 375, opt to
have their housing elements due every eight years, however,
will have several years in which challenges may not be brought
if AB 325 becomes law, thus setting up a discrepancy among
local governments in how AB 325 would be applied.
3)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), which was vetoed by Governor Schwarzenegger.
Given the previous vetoes, the Committee may wish to ask the
author and sponsor about their efforts to reach a different
fate for this year's bill.
4)A coalition of the American Planning Association, California
State Association of Counties, League of California Cities,
and the Rural County Representatives of California suggest
that, rather than opening up local agencies to litigation for
four years, the bill be amended to:
Add an additional alternative to challenge the
adequacy of a housing element: Amend Section 65009 (c)(2)
to allow someone wishing to challenge the adequacy of a
housing element to write a letter with 60 days of the
Department reporting its findings pursuant to Section
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65585(h) and to file suit within one year of receiving
the local agency's response to the letter.
Delete the new language in 65589.3 regarding court
findings that housing element "substantially complies
with all of the requirements of this article." Litigation
related to housing elements involves specific alleged
deficiencies, not "all" the requirements of the housing
element, and the provision is essentially useless unless
local governments seek declaratory relief, resulting in
more and unnecessary litigation.
1)Support Arguments : 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."
Opposition Arguments : 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 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
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interested parties to engage prior to adoption given that
Housing Element Law specially requires outreach and public
participation.
2)This bill was heard by the Housing and Community Development
Committee on May 1, 2013, and passed with a 5-1 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance Foundation [CO-SPONSOR]
Housing California [CO-SPONSOR]
Western Center on Law and Poverty [CO-SPONSOR]
Opposition
American Planning Association, California Chapter
California State Association of Counties
Cities of Lakewood, Torrance, Rancho Cucamonga, Roseville,
Thousand Oaks
League of California Cities
Rural County Representatives of California
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958