BILL ANALYSIS Ó
AB 325
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 325 (Alejo)
As Amended September 6, 2013
Majority vote
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|ASSEMBLY: |41-30|(May 31, 2013) |SENATE: |35-1 |(September 10, |
| | | | | |2013) |
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Original Committee Reference: H. & C.D.
SUMMARY : Revises the time limits for a party to initiate a
challenge to certain city or county actions, including the
adoption or amendment of a housing element, if the challenge is
brought "in support of or to encourage or facilitate the
development of housing that would increase the community's
supply of [affordable] housing."
The Senate amendments :
1)Reduce from three years to two years the amount of time a
challenging party has to serve a deficiency notice to a city
or county for a challenge in support of affordable housing to
the adoption or revision of a housing element that the
Department of Housing and Community Development (HCD) has not
found substantially complies with the requirements of the law.
2)Provide that an entity initiating a challenge in support of
affordable housing to a city or county action related to the
Least Cost Zoning Law, annual limits on housing permits, or
the adoption or revision of a density bonus ordinance has six
months after the city's or county's action to serve a
deficiency notice, the city or county has 60 days to respond,
and the challenging party has six months after the city's or
county's response to file an action in court.
3)Make technical and conforming changes.
AS PASSED BY THE ASSEMBLY , this bill:
1)Stated 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.
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2)Provided 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 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
density bonus ordinance, the deficiency notice may be
served up to three years after the city's or county's
action.
3)Provided 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)Removed 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)Clarified 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
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agreements.
6)Provided 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)Provided 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
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 subdivision (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.
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Subdivision (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
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
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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
element that HCD has found substantially complies with the
requirements of Housing Element Law to file a deficiency notice
any time within 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, the
bill allows the challenging party to serve a deficiency notice
up to two 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 response to the notice to file suit.
For local actions related to the Least Cost Zoning Law, annual
limits on housing permits, or the adoption or revision of a
density bonus ordinance, the bill allows the challenging party
to serve a deficiency notice up to six months 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 six months after the city's or county's response to file
suit.
AB 325
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Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085
FN: 0002712