Senate Bill No. 278

Introduced by Senator Gaines

February 14, 2013

An act to amend Section 65583 of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

SB 278, as introduced, Gaines. Land use: housing element.

The Planning and Zoning Law requires each city, county, and city and county to prepare and adopt a general plan that contains certain mandatory elements, including a housing element.

This bill would make technical, nonsubstantive changes to that law.

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

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

SECTION 1.  

Section 65583 of the Government Code is
amended to read:

65583.  

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

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

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

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

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

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

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

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

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

(iv) The provision of onsite management.

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

(vi) The length of stay.

(vii) Lighting.

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

(B) The permit processing, development, and management
standards applied under this paragraph shall not be deemed to be
discretionary acts within the meaning of the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).

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

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

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

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

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

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

(9) An analysis of existing assisted housing developments that
are eligible to change from low-income housing uses during the
next 10 years due to termination of subsidy contracts, mortgage
prepayment, or expiration of restrictions on use. begin delete “Assisted end delete begin insert For
purposes of this section, “assisted end insert housing developments,” begin delete for the
purpose of this section, shall mean end delete begin insert means end insert multifamily rental
housing that receives governmental assistance under federal
programs listed in subdivision (a) of Section 65863.10, state and
local multifamily revenue bond programs, local redevelopment
programs, the federal Community Development Block Grant
Program, or local in-lieu fees. “Assisted housing developments”
shall also include multifamily rental units that were developed
pursuant to a local inclusionary housing program or used to qualify
for a density bonus pursuant to Section 65916.

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

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

(C) The analysis shall identify public and private nonprofit
corporations known to the local government begin delete which end delete begin insert that end insert have legal
and managerial capacity to acquire and manage these housing
developments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(g) (1) If a local government fails to complete the rezoning by
the deadline provided in subparagraph (A) of paragraph (1) of
subdivision (c), as it may be extended pursuant to subdivision (f),
except as provided in paragraph (2), a local government may not
disapprove a housing development project, nor require a
conditional use permit, planned unit development permit, or other
locally imposed discretionary permit, or impose a condition that
would render the project infeasible, if the housing development
project (A) is proposed to be located on a site required to be
rezoned pursuant to the program action required by that
subparagraph and (B) complies with applicable, objective general
plan and zoning standards and criteria, including design review
standards, described in the program action required by that
subparagraph. Any subdivision of sites shall be subject to the
Subdivision Map Act (Division 2 (commencing with Section
66410)). Design review shall not constitute a “project” for purposes
of Division 13 (commencing with Section 21000) of the Public
Resources Code.

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

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

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

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

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

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