BILL ANALYSIS Ó
AB 325
Page 1
ASSEMBLY THIRD READING
AB 325 (Alejo)
As Amended May 29, 2013
Majority vote
HOUSING 5-2 LOCAL GOVERNMENT 5-3
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|Ayes:|Torres, Atkins, Brown, |Ayes:|Alejo, Bradford, Gordon, |
| |Chau, Mullin | |Mullin, Rendon |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Beth Gaines, Maienschein |Nays:|Achadjian, Levine, |
| | | |Melendez |
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SUMMARY : Revises the time limits for a party to initiate a
challenge to certain city or county actions, including the
adoption of a housing element, if the challenge 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
Government Code Section 65009.
2)Provides that an entity initiating a challenge in support of
affordable housing to certain city or county actions may serve
a deficiency notice as follows:
a) For a challenge to the adoption or revision of a housing
element that the Department of Housing and Community
Development (HCD) has found to substantially comply with
the requirements of Housing Element Law, the deficiency
notice may be served up to 270 days after the city's or
county's action to revise or adopt.
b) For a challenge to the adoption or revision of a housing
element that HCD has not found to substantially comply with
the requirements of Housing Element Law, a city or county
action related to the Least Cost Zoning Law, annual limits
on housing permits, or the adoption or revision of a local
density bonus ordinance, the deficiency notice may be
served up to three years after the city's or county's
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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 the
following time limits for filing an action in court:
a) For a challenge to a housing element that HCD has found
to substantially comply with the requirements of the law,
six months.
b) For all other challenges, one year.
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 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.
FISCAL EFFECT : None
COMMENTS : 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
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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 to challenges in support
of affordable housing to actions related to the Housing
Accountability Act, local limits on housing production, Density
Bonus Law, the Least Cost Zoning Law, and the statutory
requirement that a city or county, when determining whether to
approve a tentative subdivision map, apply only those
ordinances, policies, and standards in effect as of the date the
developer's application is deemed complete.
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 during the housing element planning
period. At the time, the housing element planning period was
five years for all jurisdictions. Now it is eight years for
cities and counties located within the territory of a
metropolitan planning organization (MPO), and five years for
cities and counties in rural non-MPO regions.
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 Regional Housing Needs Assessment (RHNA) obligation.
In 2008, the First District California Court of Appeals issued
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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 11
cases in which the 60-day deficiency notice was sent more than
90 days after adoption of the city's or county's housing
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.
This bill modifies the court's opinion in Urban Habitat and
makes several other changes to Government Code Section 65009.
The bill allows an entity initiating a challenge in support of
affordable housing to the adoption or revision of a housing
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element that HCD has found substantially complies with the
requirements of Housing Element Law to file a deficiency notice
any time within 270 days (nine months) after the adoption or
revision. The city or county would still have 60 days to take a
final in action in response to the deficiency notice, and the
challenging party would have six months after the city or county
responds to file suit in court.
For challenges in support of affordable housing to the adoption
or revision of a housing element that HCD has not found
substantially complies with the requirements of the law, a city
or county action related to the Least Cost Zoning Law, annual
limits on housing permits, or the adoption or revision of a
local density bonus ordinance, the bill allows the challenging
party to serve a deficiency notice up to three years after the
city's or county's action. Cities and counties would still have
60 days to respond to the notice, and the challenging party
would 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:
1)Suspend the authority of the city or county to issue building
permits.
2)Suspend the authority of the city or county to grant zoning
changes and/or variances.
3)Suspend the authority of the city or county to grant
subdivision map approvals.
4)Mandate the approval of building permits for residential
housing that meet specified criteria.
5)Mandate the approval of final subdivision maps for housing
projects that meet specified criteria.
6)Mandate the approval of tentative subdivision maps for
residential housing projects that meet specified criteria.
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This bill 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, Department of Housing and Community
Development (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. This bill 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.
Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085
FN: 0001051