Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 873


Introduced by Assembly Member Torres

February 22, 2013


An act to amend Sectionbegin delete 65583end deletebegin insert 65582end insert of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

AB 873, as amended, Torres. Land use: general plan: housing element.

The Planning and Zoning Law requires each city, county, or city and county to prepare and adopt a general plan for its jurisdiction that containsbegin delete certainend delete mandatory elements, including a housing element. That lawbegin delete requires the housing element to identify the existing and projected housing needs of all economic segments of the community.end deletebegin insert defines certain terms for the provisions applicable to the housing element by reference to the Multifamily Housing Program.end insert

This bill wouldbegin delete make technical, nonsubstantive changes to that law.end deletebegin insert modify certain of those definitions by removing the reference to the program and directly defining the terms with definitions similar to definitions from the program.end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P1    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 65582 of the end insertbegin insertGovernment Codeend insertbegin insert is
2amended to read:end insert

P2    1

65582.  

As used in this article, the following definitions apply:

2(a) “Community,” “locality,” “local government,” or
3“jurisdiction” means a city, city and county, or county.

4(b) “Council of governments” means a single or multicounty
5council created by a joint powers agreement pursuant to Chapter
65 (commencing with Section 6500) of Division 1 of Title 1.

7(c) “Department” means the Department of Housing and
8Community Development.

9(d) “Emergency shelter” has the same meaning as defined in
10subdivision (e) of Section 50801 of the Health and Safety Code.

11(e) “Housing element” or “element” means the housing element
12of the community’s general plan, as required pursuant to this article
13and subdivision (c) of Section 65302.

14(f) “Supportive housing”begin delete has the same meaning as defined in
15subdivision (b) of Section 50675.14 of the Health and Safety Code.end delete

16begin insert means housing with no limit on length of stay that is linked to
17onsite or offsite services that assist the supportive housing resident
18in retaining the housing, improving his or her health status, and
19maximizing his or her ability to live and, when possible, work in
20the community.end insert

21(g) “Transitional housing”begin delete has the same meaning as defined in
22subdivision (h) of Section 50675.2 of the Health and Safety Code.end delete

23begin insertmeans buildings configured as rental housing developments, but
24operated under program requirements that call for the termination
25of assistance and recirculation of the assisted unit to another
26eligible program recipient at some predetermined future point in
27time, which shall be no less than six months.end insert

begin delete
28

SECTION 1.  

Section 65583 of the Government Code is
29amended to read:

30

65583.  

The housing element shall consist of an identification
31and analysis of existing and projected housing needs and a
32statement of goals, policies, quantified objectives, financial
33resources, and scheduled programs for the preservation,
34improvement, and development of housing. The housing element
35shall identify adequate sites for housing, including rental housing,
36factory-built housing, mobilehomes, and emergency shelters, and
37shall make adequate provision for the existing and projected needs
38of all economic segments of the community. The housing element
39shall contain all of the following:

P3    1(a) An assessment of housing needs and an inventory of
2resources and constraints relevant to the meeting of these needs.
3The assessment and inventory shall include all of the following:

4(1) An analysis of population and employment trends and
5documentation of projections and a quantification of the locality’s
6existing and projected housing needs for all income levels,
7including extremely low income households, as defined in
8subdivision (b) of Section 50105 and Section 50106 of the Health
9and Safety Code. These existing and projected needs shall include
10the locality’s share of the regional housing need in accordance
11with Section 65584. Local agencies shall calculate the subset of
12very low income households allotted under Section 65584 that
13qualify as extremely low income households. The local agency
14may either use available census data to calculate the percentage
15of very low income households that qualify as extremely low
16income households or presume that 50 percent of the very low
17income households qualify as extremely low income households.
18The number of extremely low income households and very low
19income households shall equal the jurisdiction’s allocation of very
20low income households pursuant to Section 65584.

21(2) An analysis and documentation of household characteristics,
22including level of payment compared to ability to pay, housing
23characteristics, including overcrowding, and housing stock
24condition.

25(3) An inventory of land suitable for residential development,
26including vacant sites and sites having potential for redevelopment,
27and an analysis of the relationship of zoning and public facilities
28and services to these sites.

29(4) (A) An identification of a zone or zones where emergency
30shelters are allowed as a permitted use without a conditional use
31or other discretionary permit. The identified zone or zones shall
32include sufficient capacity to accommodate the need for emergency
33shelter identified in paragraph (7), except that each local
34government shall identify a zone or zones that can accommodate
35at least one year-round emergency shelter. If the local government
36cannot identify a zone or zones with sufficient capacity, the local
37government shall include a program to amend its zoning ordinance
38to meet the requirements of this paragraph within one year of the
39adoption of the housing element. The local government may
40identify additional zones where emergency shelters are permitted
P4    1with a conditional use permit. The local government shall also
2demonstrate that existing or proposed permit processing,
3development, and management standards are objective and
4encourage and facilitate the development of, or conversion to,
5emergency shelters. Emergency shelters may only be subject to
6those development and management standards that apply to
7residential or commercial development within the same zone except
8that a local government may apply written, objective standards
9that include all of the following:

10(i) The maximum number of beds or persons permitted to be
11served nightly by the facility.

12(ii) Off-street parking based upon demonstrated need, provided
13that the standards do not require more parking for emergency
14shelters than for other residential or commercial uses within the
15same zone.

16(iii) The size and location of exterior and interior onsite waiting
17and client intake areas.

18(iv) The provision of onsite management.

19(v) The proximity to other emergency shelters, provided that
20emergency shelters are not required to be more than 300 feet apart.

21(vi) The length of stay.

22(vii) Lighting.

23(viii) Security during hours that the emergency shelter is in
24operation.

25(B) The permit processing, development, and management
26standards applied under this paragraph shall not be deemed to be
27discretionary acts within the meaning of the California
28Environmental Quality Act (Division 13 (commencing with Section
2921000) of the Public Resources Code).

30(C) A local government that can demonstrate to the satisfaction
31of the department the existence of one or more emergency shelters
32either within its jurisdiction or pursuant to a multijurisdictional
33 agreement that can accommodate that jurisdiction’s need for
34emergency shelter identified in paragraph (7) may comply with
35the zoning requirements of subparagraph (A) by identifying a zone
36or zones where new emergency shelters are allowed with a
37conditional use permit.

38(D) A local government with an existing ordinance or ordinances
39that comply with this paragraph shall not be required to take
40additional action to identify zones for emergency shelters. The
P5    1housing element must only describe how existing ordinances,
2policies, and standards are consistent with the requirements of this
3paragraph.

4(5) An analysis of potential and actual governmental constraints
5upon the maintenance, improvement, or development of housing
6for all income levels, including the types of housing identified in
7paragraph (1) of subdivision (c), and for persons with disabilities
8as identified in the analysis pursuant to paragraph (7), including
9land use controls, building codes and their enforcement, site
10improvements, fees and other exactions required of developers,
11and local processing and permit procedures. The analysis shall
12also demonstrate local efforts to remove governmental constraints
13that hinder the locality from meeting its share of the regional
14housing need in accordance with Section 65584 and from meeting
15the need for housing for persons with disabilities, supportive
16housing, transitional housing, and emergency shelters identified
17pursuant to paragraph (7). Transitional housing and supportive
18housing shall be considered a residential use of property, and shall
19be subject only to those restrictions that apply to other residential
20dwellings of the same type in the same zone.

21(6) An analysis of potential and actual nongovernmental
22constraints upon the maintenance, improvement, or development
23of housing for all income levels, including the availability of
24financing, the price of land, and the cost of construction.

25(7) An analysis of any special housing needs, such as those of
26the elderly; persons with disabilities, including a developmental
27disability, as defined in Section 4512 of the Welfare and
28Institutions Code; large families; farmworkers; families with female
29heads of households; and families and persons in need of
30emergency shelter. The need for emergency shelter shall be
31assessed based on annual and seasonal need. The need for
32emergency shelter may be reduced by the number of supportive
33housing units that are identified in an adopted 10-year plan to end
34chronic homelessness and that are either vacant or for which
35funding has been identified to allow construction during the
36planning period.

37(8) An analysis of opportunities for energy conservation with
38respect to residential development. Cities and counties are
39encouraged to include weatherization and energy efficiency
40improvements as part of publicly subsidized housing rehabilitation
P6    1projects. This may include energy efficiency measures that
2encompass the building envelope, its heating and cooling systems,
3and its electrical system.

4(9) An analysis of existing assisted housing developments that
5are eligible to change from low-income housing uses during the
6next 10 years due to termination of subsidy contracts, mortgage
7prepayment, or expiration of restrictions on use. “Assisted housing
8developments,” for the purpose of this section, shall mean
9multifamily rental housing that receives governmental assistance
10under federal programs listed in subdivision (a) of Section
1165863.10, state and local multifamily revenue bond programs,
12local redevelopment programs, the federal Community
13Development Block Grant Program, or local in-lieu fees. “Assisted
14housing developments” shall also include multifamily rental units
15that were developed pursuant to a local inclusionary housing
16program or used to qualify for a density bonus pursuant to Section
1765915.

18(A) The analysis shall include a listing of each development by
19project name and address, the type of governmental assistance
20received, the earliest possible date of change from low-income
21use, and the total number of elderly and nonelderly units that could
22be lost from the locality’s low-income housing stock in each year
23during the 10-year period. For purposes of state and federally
24funded projects, the analysis required by this subparagraph need
25only contain information available on a statewide basis.

26(B) The analysis shall estimate the total cost of producing new
27rental housing that is comparable in size and rent levels, to replace
28the units that could change from low-income use, and an estimated
29cost of preserving the assisted housing developments. This cost
30analysis for replacement housing may be done aggregately for
31each five-year period and does not have to contain a
32project-by-project cost estimate.

33(C) The analysis shall identify public and private nonprofit
34corporations known to the local government that have legal and
35managerial capacity to acquire and manage these housing
36developments.

37(D) The analysis shall identify and consider the use of all federal,
38state, and local financing and subsidy programs that can be used
39to preserve, for lower income households, the assisted housing
40developments, identified in this paragraph, including, but not
P7    1limited to, federal Community Development Block Grant Program
2funds, tax increment funds received by a redevelopment agency
3of the community, and administrative fees received by a housing
4authority operating within the community. In considering the use
5of these financing and subsidy programs, the analysis shall identify
6the amounts of funds under each available program that have not
7been legally obligated for other purposes and that could be
8available for use in preserving assisted housing developments.

9(b) (1) A statement of the community’s goals, quantified
10objectives, and policies relative to the maintenance, preservation,
11improvement, and development of housing.

12(2) It is recognized that the total housing needs identified
13pursuant to subdivision (a) may exceed available resources and
14the community’s ability to satisfy this need within the content of
15the general plan requirements outlined in Article 5 (commencing
16with Section 65300). Under these circumstances, the quantified
17objectives need not be identical to the total housing needs. The
18quantified objectives shall establish the maximum number of
19housing units by income category, including extremely low income,
20that can be constructed, rehabilitated, and conserved over a
21five-year time period.

22(c) A program that sets forth a schedule of actions during the
23planning period, each with a timeline for implementation, which
24may recognize that certain programs are ongoing, such that there
25will be beneficial impacts of the programs within the planning
26period, that the local government is undertaking or intends to
27undertake to implement the policies and achieve the goals and
28objectives of the housing element through the administration of
29land use and development controls, the provision of regulatory
30concessions and incentives, the utilization of appropriate federal
31and state financing and subsidy programs when available, and the
32utilization of moneys in a low- and moderate-income housing fund
33of an agency if the locality has established a redevelopment project
34area pursuant to the Community Redevelopment Law (Division
3524 (commencing with Section 33000) of the Health and Safety
36Code). In order to make adequate provision for the housing needs
37of all economic segments of the community, the program shall do
38all of the following:

39(1) Identify actions that will be taken to make sites available
40during the planning period with appropriate zoning and
P8    1development standards and with services and facilities to
2accommodate that portion of the city’s or county’s share of the
3regional housing need for each income level that could not be
4accommodated on sites identified in the inventory completed
5pursuant to paragraph (3) of subdivision (a) without rezoning, and
6to comply with the requirements of Section 65584.09. Sites shall
7be identified as needed to facilitate and encourage the development
8of a variety of types of housing for all income levels, including
9multifamily rental housing, factory-built housing, mobilehomes,
10housing for agricultural employees, supportive housing,
11single-room occupancy units, emergency shelters, and transitional
12housing.

13(A) If the inventory of sites, pursuant to paragraph (3) of
14subdivision (a), does not identify adequate sites to accommodate
15the need for groups of all household income levels pursuant to
16Section 65584, then rezoning of those sites, including adoption of
17minimum density and development standards, for jurisdictions
18with an eight-year housing element planning period pursuant to
19Section 65588, shall be completed no later than three years after
20either the date the housing element is adopted pursuant to
21subdivision (f) of Section 65585 or the date that is 90 days after
22 receipt of comments from the department pursuant to subdivision
23(b) of Section 65585, whichever is earlier, unless the deadline is
24extended pursuant to subdivision (f). Notwithstanding the
25foregoing, for a local government that fails to adopt a housing
26element within 120 days of the statutory deadline in Section 65588
27for adoption of the housing element, rezoning of those sites,
28including adoption of minimum density and development standards,
29shall be completed no later than three years and 120 days from the
30statutory deadline in Section 65588 for adoption of the housing
31element.

32(B) If the inventory of sites, pursuant to paragraph (3) of
33subdivision (a), does not identify adequate sites to accommodate
34the need for groups of all household income levels pursuant to
35Section 65584, then the program shall identify sites that can be
36developed for housing within the planning period pursuant to
37subdivision (h) of Section 65583.2. The identification of sites shall
38include all components specified in subdivision (b) of Section
3965583.2.

P9    1(C) If the inventory of sites pursuant to paragraph (3) of
2subdivision (a) does not identify adequate sites to accommodate
3the need for farmworker housing, then the program shall provide
4for sufficient sites to meet the need with zoning that permits
5farmworker housing use by right, including density and
6development standards that could accommodate and facilitate the
7feasibility of the development of farmworker housing for low- and
8very low income households.

9(2) Assist in the development of adequate housing to meet the
10needs of extremely low, very low, low-, and moderate-income
11households.

12(3) Address and, where appropriate and legally possible, remove
13governmental constraints to the maintenance, improvement, and
14development of housing, including housing for all income levels
15and housing for persons with disabilities. The program shall remove
16 constraints to, and provide reasonable accommodations for housing
17designed for, intended for occupancy by, or with supportive
18services for, persons with disabilities.

19(4) Conserve and improve the condition of the existing
20affordable housing stock, which may include addressing ways to
21mitigate the loss of dwelling units demolished by public or private
22action.

23(5) Promote housing opportunities for all persons regardless of
24race, religion, sex, marital status, ancestry, national origin, color,
25familial status, or disability.

26(6) Preserve for lower income households the assisted housing
27developments identified pursuant to paragraph (9) of subdivision
28(a). The program for preservation of the assisted housing
29developments shall utilize, to the extent necessary, all available
30federal, state, and local financing and subsidy programs identified
31in paragraph (9) of subdivision (a), except where a community has
32other urgent needs for which alternative funding sources are not
33available. The program may include strategies that involve local
34regulation and technical assistance.

35(7)  Include an identification of the agencies and officials
36responsible for the implementation of the various actions and the
37means by which consistency will be achieved with other general
38plan elements and community goals.

39(8) Include a diligent effort by the local government to achieve
40public participation of all economic segments of the community
P10   1in the development of the housing element, and the program shall
2describe this effort.

3(d) (1) A local government may satisfy all or part of its
4requirement to identify a zone or zones suitable for the
5development of emergency shelters pursuant to paragraph (4) of
6subdivision (a) by adopting and implementing a multijurisdictional
7agreement, with a maximum of two other adjacent communities,
8that requires the participating jurisdictions to develop at least one
9year-round emergency shelter within two years of the beginning
10of the planning period.

11(2) The agreement shall allocate a portion of the new shelter
12capacity to each jurisdiction as credit towards its emergency shelter
13need, and each jurisdiction shall describe how the capacity was
14allocated as part of its housing element.

15(3) Each member jurisdiction of a multijurisdictional agreement
16shall describe in its housing element all of the following:

17(A) How the joint facility will meet the jurisdiction’s emergency
18shelter need.

19(B) The jurisdiction’s contribution to the facility for both the
20development and ongoing operation and management of the
21facility.

22(C) The amount and source of the funding that the jurisdiction
23contributes to the facility.

24(4) The aggregate capacity claimed by the participating
25jurisdictions in their housing elements shall not exceed the actual
26capacity of the shelter.

27(e) Except as otherwise provided in this article, amendments to
28this article that alter the required content of a housing element
29shall apply to both of the following:

30(1) A housing element or housing element amendment prepared
31pursuant to subdivision (e) of Section 65588 or Section 65584.02,
32when a city, county, or city and county submits a draft to the
33department for review pursuant to Section 65585 more than 90
34days after the effective date of the amendment to this section.

35(2) Any housing element or housing element amendment
36prepared pursuant to subdivision (e) of Section 65588 or Section
3765584.02, when the city, county, or city and county fails to submit
38the first draft to the department before the due date specified in
39Section 65588 or 65584.02.

P11   1(f) The deadline for completing required rezoning pursuant to
2subparagraph (A) of paragraph (1) of subdivision (c) shall be
3extended by one year if the local government has completed the
4rezoning at densities sufficient to accommodate at least 75 percent
5of the units for low- and very low income households and if the
6legislative body at the conclusion of a public hearing determines,
7based upon substantial evidence, that any of the following
8circumstances exist:

9(1) The local government has been unable to complete the
10rezoning because of the action or inaction beyond the control of
11the local government of any other state, federal, or local agency.

12(2) The local government is unable to complete the rezoning
13because of infrastructure deficiencies due to fiscal or regulatory
14constraints.

15(3) The local government must undertake a major revision to
16its general plan in order to accommodate the housing-related
17policies of a sustainable communities strategy or an alternative
18planning strategy adopted pursuant to Section 65080.

19The resolution and the findings shall be transmitted to the
20department together with a detailed budget and schedule for
21preparation and adoption of the required rezonings, including plans
22for citizen participation and expected interim action. The schedule
23shall provide for adoption of the required rezoning within one year
24of the adoption of the resolution.

25(g) (1) If a local government fails to complete the rezoning by
26the deadline provided in subparagraph (A) of paragraph (1) of
27subdivision (c), as it may be extended pursuant to subdivision (f),
28except as provided in paragraph (2), a local government may not
29disapprove a housing development project, nor require a
30conditional use permit, planned unit development permit, or other
31locally imposed discretionary permit, or impose a condition that
32would render the project infeasible, if the housing development
33project is both (A) proposed to be located on a site required to be
34 rezoned pursuant to the program action required by that
35subparagraph and (B) complies with applicable, objective general
36plan and zoning standards and criteria, including design review
37standards, described in the program action required by that
38subparagraph. Any subdivision of sites shall be subject to the
39Subdivision Map Act (Division 2 (commencing with Section
4066410)). Design review shall not constitute a “project” for purposes
P12   1of Division 13 (commencing with Section 21000) of the Public
2Resources Code.

3(2) A local government may disapprove a housing development
4described in paragraph (1) if it makes written findings supported
5by substantial evidence on the record that both of the following
6conditions exist:

7(A) The housing development project would have a specific,
8adverse impact upon the public health or safety unless the project
9is disapproved or approved upon the condition that the project be
10developed at a lower density. As used in this paragraph, a “specific,
11adverse impact” means a significant, quantifiable, direct, and
12unavoidable impact, based on objective, identified written public
13health or safety standards, policies, or conditions as they existed
14on the date the application was deemed complete.

15(B) There is no feasible method to satisfactorily mitigate or
16avoid the adverse impact identified pursuant to paragraph (1), other
17than the disapproval of the housing development project or the
18approval of the project upon the condition that it be developed at
19a lower density.

20(3) The applicant or any interested person may bring an action
21to enforce this subdivision. If a court finds that the local agency
22disapproved a project or conditioned its approval in violation of
23this subdivision, the court shall issue an order or judgment
24compelling compliance within 60 days. The court shall retain
25jurisdiction to ensure that its order or judgment is carried out. If
26the court determines that its order or judgment has not been carried
27out within 60 days, the court may issue further orders to ensure
28that the purposes and policies of this subdivision are fulfilled. In
29any such action, the city, county, or city and county shall bear the
30burden of proof.

31(4) For purposes of this subdivision, “housing development
32project” means a project to construct residential units for which
33the project developer provides sufficient legal commitments to the
34appropriate local agency to ensure the continued availability and
35use of at least 49 percent of the housing units for very low, low-,
36and moderate-income households with an affordable housing cost
37or affordable rent, as defined in Section 50052.5 or 50053 of the
38Health and Safety Code, respectively, for the period required by
39the applicable financing.

P13   1(h) An action to enforce the program actions of the housing
2element shall be brought pursuant to Section 1085 of the Code of
3Civil Procedure.

end delete


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