BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 325|
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THIRD READING
Bill No: AB 325
Author: Alejo (D), et al.
Amended: 9/6/13 in Senate
Vote: 21
SENATE TRANSPORTATION & HOUSING COMMITTEE : 7-3, 6/25/13
AYES: DeSaulnier, Beall, Hueso, Lara, Liu, Pavley, Roth
NOES: Gaines, Galgiani, Wyland
NO VOTE RECORDED: Cannella
ASSEMBLY FLOOR : 41-30, 5/31/13 - See last page for vote
SUBJECT : Statute of limitations and remedies for specified
housing-related challenges
SOURCE : California Rural Legal Assistance Foundation
Housing California
Western Center on Law and Poverty
DIGEST : This bill allows an entity in support of affordable
housing to initiate a challenge to a housing element or a
specified city or county housing ordinance, as specified.
Senate Floor Amendments of 9/6/13 address concerns raised by the
League of California Cities, the California State Association of
Counties, and the American Planning Association. Specifically,
the amendments 1) revise the statute of limitations provisions
of Government Code Section 65009 by creating three classes of
actions, each with a different time frame for serving a
deficiency notice and filing an action; 2) delete the bill's
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provision providing that if a third-party challenges the
adequacy of a housing element 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; and 3) repeals the ability of a third party to choose
to bring an action challenging a city's or county's failure to
meet housing element implementation deadlines pursuant to
Government Code Section 65009.
ANALYSIS : 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 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 receives its fair share of
housing for each income category through the regional housing
needs assessment (RHNA) process. A housing element must
identify and analyze existing and projected housing needs,
identify adequate sites with appropriate zoning to meet its
share of the RHNA, and ensure that regulatory systems provide
opportunities for, and do not unduly constrain, housing
development. The Department of Housing and Community
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:
1.The Housing Accountability Act, which requires a city or
county to make one or more specified findings in order to
disapprove a particular housing development.
2.A provision requiring cities and counties, when adopting an
ordinance that limits the number of housing units that may be
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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.
3.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.
4.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.
5.A requirement that, when determining whether to approve a
tentative subdivision map, a city or county shall apply only
those ordinances, policies, and standards in effect as of the
date the developer's application is deemed complete.
Prior to a recent court decision, it was understood that
existing law (Government Code Section 65009) allowed a party to
challenge the adequacy of a city's or county's housing element
at any time during a planning period, provided that the
challenger brought the action "in support of or to encourage or
facilitate the development of housing that would increase the
community's supply of affordable housing." The challenging
party was 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
(referred to below as "the lapsing of the notice period"), the
challenging party had one year to file the action in court.
This process and statute of limitations is known as the "notice
and accrual provision" and also applied to actions brought
pursuant to the housing-related statutes listed above.
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
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the case of Urban Habitat v. 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 concluded that, while the statute does not specify the
time within which a party must deliver the deficiency notice to
the city or county, it must interpret the statute as containing
a time limit. The court then set the deadline for serving a
notice at 90 days after the legislative action to adopt the
housing element or ordinance at issue.
In other words, instead of being able to initiate a challenge to
a deficient housing element at any time during the planning
period, housing advocates and other interested parties may now
only initiate such a challenge by submitting a deficiency notice
within 90 days of the housing element's adoption.
Existing law also 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.
This bill:
1.States the intent of the Legislature to modify the court's
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opinion in Urban Habitat Program v. City of Pleasanton with
respect to the interpretation of Section 65009 of the
Government Code.
2.Removes from the current list of city or county actions that a
party may challenge pursuant to the Government Code
Section65009 notice and accrual provision 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.
The bill maintains the ability to use the notice and accrual
provision to challenge the adequacy of a city's or county's
density bonus ordinance generally.
3.Revises the statute of limitations provisions of Government
Code Section 65009 by creating three classes of actions, each
with a different time frame for serving a deficiency notice
and filing an action as follows:
A. HCD-approved housing elements . To challenge a housing
element that HCD has approved, the amendments require a
party to service a deficiency notice within nine months of
adoption. The city or county has 60 days to respond to the
notice, and the party must file an action within 6 months
of the response or the expiration of the 60-day response
period.
B. Non-HCD-approved housing elements . To challenge a
housing element that has not-received HCD approval, the
amendments require a party to service a deficiency notice
within two years of adoption. The city or county has 60
days to respond to the notice, and the party must file an
action within 1 year of the response or the expiration of
the 60-day response period.
C. Other specified housing challenges . To challenge a
city's or county's compliance with Government Code Section
65863.6 or the Least Cost Zoning Law or to challenge a
local density bonus ordinance, the amendments require a
party to service a deficiency notice within 6 months of the
city's or county's action. The city or county has 60 days
to respond to the notice, and the party must file an action
within 6 months of the response or the expiration of the
60-day response period.
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1.Clarifies that in any action 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.
2.Repeals the ability of a third party to choose to bring an
action challenging a city's or county's failure to meet
housing element implementation deadlines pursuant to
Government Code Section 65009. As a result, such actions are
subject solely to the statutes of limitation in Section 1085
of the Code of Civil Procedure.
Background
A brief history of the statute . 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 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. The Senate
Housing and Land Use Committee and the Senate Third Reading
analysis of the bill stated that the bill:
Specifies that for challenges in support of low-and
moderate-income housing requirements, the petitioner shall
notice local government 60 days prior to filing action.
The one-year statute of limitations then begins on the
first day the legislative body fails to act.
In the intervening 25 years prior to the Urban Habitat ruling,
housing advocates filed and successfully settled at least ten
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 on the
advocates' suit contested. Likewise, six bills amended other
portions of this statute during those intervening years, and
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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.
Unlocking the private market . The purpose of housing element
law is to create opportunities for the private housing market to
function. Builders cannot build without access to appropriately
zoned land, and current land use plans in many cities and
counties in California fail to provide sufficient opportunities
to accommodate projected population growth. The San Diego
Association of Governments' Regional Comprehensive Plan
describes this typical California paradox in the following way:
Under current plans and policies, more than 90% of the San
Diego region's remaining vacant land designated for housing
is planned for densities of less than one home per acre,
and most is in the rural back country areas dependent upon
scarce groundwater supplies. And of the remaining vacant
land planned for housing in the 18 incorporated cities,
only about 7% is planned for multifamily housing. When
taken together, the current land use plans of the 19 local
jurisdictions do not accommodate the amount of growth
anticipated in our region. As a result, home prices will
continue to skyrocket, forcing many to abandon their dreams
of home ownership or move to neighboring areas with less
expensive housing costs. These people, who teach our
children, police our neighborhoods, and bag our groceries,
often become long-distance commuters, and with few transit
options, our freeways become more and more congested. The
result for our region will be an ongoing housing crisis and
worsening traffic.
Housing element law addresses this problem directly by requiring
cities and counties to zone land at appropriate densities to
accommodate the projected housing needs of all income groups and
to remove constraints that prevent such sites from being
developed at the allowed densities. Cities and counties,
however, are not required to build housing because that is the
role of private developers. The law holds cities and counties
accountable only for that which they control: zoning and land
use entitlements. Without the ability to enforce housing
element law, the market's ability to meet housing demand may
well remain locked up.
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Previous legislation . Twice in the last three years, the
Legislature has approved a bill very similar to this one.
AB 602 (Feuer, 2010) allowed entities to serve a deficiency
notice within five years of adoption of a housing element or
specified housing ordinance. Governor Schwarzenegger vetoed AB
602, stating:
Local governments face numerous potential legal liabilities
when land is developed. One of the protections and
assurances provided to local governments in order to
encourage them to move forward with land development is
that there is a reasonable statute of limitations on when a
legal claim can be filed. Existing law gives interested
parties sufficient time to bring an action, and extending
this period to five years could result in uncertainty for
local governments.
AB 1220 (Alejo, 2011) reduced the period in which an entity may
serve a deficiency notice to three years. Governor Brown vetoed
AB 1220, stating:
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.
This bill differs from AB 1220 in that it provides that a party
challenging an HCD-approved housing element must serve a
deficiency notice within 270 days of the adoption of the housing
element and file an action in court within six months of the
lapsing of the notice period.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 9/9/13)
California Rural Legal Assistance Foundation (co-source)
Housing California (co-source)
Western Center on Law and Poverty (co-source)
California Association of Realtors
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California Coalition for Rural Housing
Congress of California Seniors
Housing Advocacy Group
Mammoth Lakes Housing
Non-Profit Housing Association of Northern California
Public Advocates
Transform
Urban Habitat
OPPOSITION : (Verified 9/9/13) (Opposition to prior version)
Cities of Adelanto, Alameda, Alhambra, Antioch, Azusa, Blue
Lake, Brawley, Burbank, Camarillo, Ceres, Chowchilla,
Claremont, Clayton, Cloverdale, Concord, Corona, Coronado,
Cupertino, Cypress, Danville, Del Mar, Diamond Bar, Downey, El
Centro, Encinitas, Fairfield, Folsom, Fountain Valley,
Fremont, Fresno, Grass Valley, Hillsborough, Huntington Beach,
Inglewood, La Ca�ada Flintridge, La Mirada, Lafayette,
Lakewood, Lathrop, Moorpark, Murrieta, Norwalk, Ontario,
Orinda, Palo Alto, Paramount, Pasadena, Pleasant Hill,
Pleasanton, Pomona, Poway, Rancho Cucamonga, Reedley,
Roseville, Sacramento, San Diego, San Gabriel, San Luis
Obispo, San Marcos, San Mateo, San Rafael, Santa Barbara,
Santa Monica, Santa Rosa, Scotts Valley, Solana Beach, South
San Francisco, Sunnyvale, Thousand Oaks, Torrance, Tracy,
Tulare, Visalia, Vista, Wasco, West Hollywood, and Whittier.
Civil Justice Association of California
Counties of Lassen, Marin, Orange, Sacramento, San Diego, and
Tulare
Marin County Council of Mayors and Councilmembers
Rural County Representatives of California
Town of Atherton
Town of Hillsborough
ARGUMENTS IN SUPPORT : According to the author, "This bill
corrects a flawed court ruling that held that citizens may only
challenge the adequacy of a city's or county's housing element
for 90 days from the date of adoption. Combined with the recent
change to an eight-year housing element cycle, the ruling holds
the potential for more than seven years of bad land-use
decisions with little recourse for citizen action."
ARGUMENTS IN OPPOSITION : The Civil Justice Association
opposes lengthening statutes of limitations generally. They
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believe memories fade, witnesses become difficult to locate, and
courts are less likely to be fair. Moreover, short statutes of
limitations encourage the diligent settling of claims.
ASSEMBLY FLOOR : 41-30, 5/31/13
AYES: Alejo, Ammiano, Atkins, Blumenfield, Bocanegra, Bonilla,
Bradford, Brown, Ian Calderon, Campos, Chau, Cooley, Daly,
Dickinson, Fong, Fox, Garcia, Gomez, Gonzalez, Gray, Hall,
Roger Hern�ndez, Jones-Sawyer, Lowenthal, Medina, Mitchell,
Mullin, Nazarian, Pan, V. Manuel P�rez, Quirk-Silva, Rendon,
Salas, Skinner, Stone, Ting, Weber, Wieckowski, Williams,
Yamada, John A. P�rez
NOES: Achadjian, Allen, Bigelow, Bloom, Ch�vez, Conway, Dahle,
Donnelly, Beth Gaines, Gatto, Gordon, Gorell, Grove, Hagman,
Harkey, Jones, Levine, Linder, Logue, Maienschein, Mansoor,
Melendez, Morrell, Muratsuchi, Nestande, Olsen, Patterson,
Wagner, Waldron, Wilk
NO VOTE RECORDED: Bonta, Buchanan, Chesbro, Eggman, Frazier,
Holden, Perea, Quirk, Vacancy
JA:ej 9/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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