BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2502


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          Date of Hearing:  April 27, 2016 


               ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT


                                  David Chiu, Chair


          AB 2502  
          (Mullin) - As Amended April 18, 2016


          SUBJECT:  Land use:  zoning regulations


          SUMMARY:  Authorizes the legislative body of a city or county to  
          establish inclusionary housing requirements as a condition of  
          development.  Specifically, this bill:  


          1)Authorizes the legislative body of a city or county to  
            establish, as a condition of development, inclusionary housing  
            requirements, which may require the provision of residential  
            units affordable to and occupied by moderate income,  
            lower-income, very low-income, or extremely low-income  
            households, as specified.



          2)States the Legislature's intent to supersede any holding or  
            dicta in Palmer/Sixth Street Properties, L.P. v. City of Los  
            Angeles (2009) 175 Cal.App.4th 1396, to the extent that the  
            opinion in that case conflicts with the authority of local  
            governments to adopt inclusionary housing requirements, and  
            specifies that the bill does not otherwise enlarge or diminish  
            the authority of a jurisdiction beyond those powers that  
            existed as of July 21, 2009.









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          3)States that the Legislature finds and declares all of the  
            following:



             a)   Inclusionary housing ordinances have provided quality  
               affordable housing to over 80,000 Californians, including  
               the production of an estimated 30,000 units of affordable  
               housing in the last decade alone;



             b)   Since the 1970's, over 170 jurisdictions have enacted  
               inclusionary housing ordinances to meet their affordable  
               housing needs;



             c)   While many of these local programs have been in place  
               for decades, the recent decision in Palmer/Sixth Street  
               Properties v. City of Los Angeles, has created uncertainty  
               and confusion for local governments regarding the future  
               viability of this important local land use tool; and,



             d)   It is the intent of the Legislature to reaffirm the  
               authority of local jurisdictions to enact and enforce these  
               ordinances.



          4)States that it is the intent of the Legislature to reaffirm  
            that existing law requires that the action of any legislative  
            body of any city, county, or city and county to adopt a new  
            inclusionary housing ordinance be taken openly and that their  
            deliberations be conducted openly consistent with the  








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            requirements of the Ralph M. Brown Act.
          EXISTING LAW:


          1)Grants cities and counties the power to make and enforce  
            within their limits all local, police, sanitary, and other  
            ordinances and regulations not in conflict with general laws.





          2)Declares the Legislature's intent to provide only a minimum of  
            limitation with respect to zoning in order that counties and  
            cities may exercise the maximum degree of control over local  
            zoning matters.



          3)Specifically authorizes the legislative body of any county or  
            city to adopt ordinances that do any of the following:



             a)   Regulate the use of buildings, structures, and land as  
               between industry, business, residences, open space,  
               agriculture, recreation, enjoyment of scenic beauty, use of  
               natural resources, and other purposes;



             b)   Regulate signs and billboards;



             c)   Regulate all of the following:











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               i)     The location, height, bulk, number of stories, and  
                 size of buildings and structures;



               ii)    The size and use of lots, yards, courts, and other  
                 open spaces;



               iii)   The percentage of a lot that may be occupied by a  
                 building or structure; and,



               iv)    The intensity of land use.



             d)   Establish requirements for offstreet parking and  
               loading;



             e)   Establish and maintain building setback lines; and,



             f)   Create civic districts around civic centers, public  
               parks, public buildings, or public grounds, and establish  
               regulations for those civic districts.



          4)Limits, pursuant to the Costa-Hawkins Rental Housing Act, the  
            permissible scope of local rent control ordinances and  
            generally gives the owner of residential real property the  
            right to establish the initial rental rate for a dwelling or  
            unit.








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          FISCAL EFFECT:  None


          COMMENTS:  


          Article XI, Section 7 of the California Constitution grants each  
          city and county the power "to make and enforce within its limits  
          all local, police, sanitary, and other ordinances and  
          regulations not in conflict with general laws." This is  
          generally referred to as the police power of local governments.   
          The Planning and Zoning Law is a general law that sets forth  
          minimum standards for cities and counties to follow in land use  
          regulation, but the law also establishes the Legislature's  
          intent to "provide only a minimum of limitation in order that  
          counties and cities may exercise the maximum degree of control  
          over local zoning matters."





          Using this police power, many cities and counties have adopted  
          ordinances, commonly called "inclusionary zoning" or  
          "inclusionary housing" ordinances, that require developers to  
          ensure that a certain percentage of housing units in a new  
          development be affordable to lower-income households.  These  
          ordinances vary widely in the percentage of affordable units  
          required, the depth of affordability required, and the options  
          through which a developer may choose to comply.  Most, if not  
          all, of such ordinances apply to both rental and ownership  
          housing.


          In 2009, in the case of Palmer v. City of Los Angeles, the  
          Second District California Court of Appeal opined that the  
          city's affordable housing requirements associated with a  
          particular specific plan (which was similar to an inclusionary  
          zoning ordinance), as it applied to rental housing, conflicted  








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          with and was preempted by a state law known as the Costa-Hawkins  
          Rental Housing Act.  The Costa-Hawkins Act limits the  
          permissible scope of local rent control ordinances.  Among its  
          various provisions is the right for a rental housing owner  
          generally to set the initial rent level at the start of a  
          tenancy, even if the local rent control ordinance would  
          otherwise limit rent levels across tenancies.  This provision is  
          known as vacancy decontrol because the rent level is temporarily  
          decontrolled after a voluntary vacancy.  The act also gives  
          rental housing owners the right to set the initial and all  
          subsequent rental rates for a unit built after February 1, 1995.  
           The court opined that "forcing Palmer to provide affordable  
          housing units at regulated rents in order to obtain project  
          approval is clearly hostile to the right afforded under the  
          Costa-Hawkins Act to establish the initial rental rate for a  
          dwelling or unit."





          The Legislature enacted the Costa-Hawkins Rental Housing Act in  
          1995 with the passage of AB 1164 (Hawkins), Chapter 331.  The  
          various analyses for this bill exclusively discuss rent control  
          ordinances and do not once mention inclusionary zoning  
          ordinances, of which approximately 64 existed in the state at  
          that time.  The Assembly concurrence analysis of AB 1164, which  
          is very similar to the other analyses, states that the bill  
          "establishes a comprehensive scheme to regulate local  
          residential rent control."  The analysis includes a table of  
          jurisdictions that would be affected by the bill, and the table  
          exclusively includes cities with rent control ordinances and  
          does not include any cities that had inclusionary zoning  
          ordinances affecting rental housing.  The analysis also states,  
          "Proponents view this bill as a moderate approach to overturn  
          extreme vacancy control ordinances which unduly and unfairly  
          interfere into the free market."  The analysis further describes  
          strict rent control ordinances as those that impose vacancy  
          control and states, "Proponents contend that a statewide new  








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          construction exemption is necessary to encourage construction of  
          much needed housing units, which is discouraged by strict local  
          rent controls."  This legislative history provides no indication  
          that the Legislature intended to affect inclusionary zoning with  
          the passage of AB 1164.  





           California Building Industry Association (CBIA) v. City of San  
          Jose.   The City of San Jose's inclusionary housing ordinance  
          passed in 2010 and required all new residential development  
          projects of 20 or more units to sell at least 15% of the  
          for-sale units at a price that is affordable to low- or  
          moderate-income households.  The ordinance allowed developers to  
          opt out of the 15% requirements by dedicating land elsewhere or  
          by paying "in-lieu" fees to the city.  Shortly before the  
          ordinance took effect, CBIA filed a lawsuit in superior court,  
          maintaining that the ordinance was invalid on its face on the  
          ground that the city, in enacting the ordinance, failed to  
          provide a sufficient evidentiary basis "to demonstrate a  
          reasonable relationship between any adverse public impacts or  
          needs for additional subsidized housing units in the City  
          ostensibly caused by or reasonably attributed to the development  
          of new residential developments of 20 units or more and the new  
          affordable housing exactions and conditions imposed on  
          residential development by the Ordinance."  


          The superior court agreed with CBIA's contention and issued a  
          judgment enjoining the city from enforcing the challenged  
          ordinance.  The Court of Appeal then reversed the superior court  
          judgment, and concluded that the matter should be remanded to  
          the trial court.  CBIA then sought review of the Court of Appeal  
          decision in the Supreme Court which granted review.


          The Supreme Court in June of 2015 concluded that the Court of  








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          Appeal decision should be upheld, and that "contrary to CBIA's  
          contention, the conditions the San Jose ordinance imposes upon  
          future development do not impose 'exactions' upon the  
          developers' property so as to bring into play the  
          unconstitutional conditions doctrine under the takings clause of  
          the federal or state Constitution."  The ruling also noted that  
          enforcing these limits to address a growing housing problem is  
          "constitutionally legitimate" and cited the severe scarcity of  
          affordable housing in California in its decision.


          This bill authorizes the legislative body of any city or county  
          to adopt ordinances to establish, as a condition of development,  
          inclusionary housing requirements and makes a number of  
          legislative findings and declarations to supersede any holding  
          or dicta in Palmer/Sixth Street Properties, L.P. v. City of Los  
          Angeles (2009).


           Purpose of this bill:   According to the author, "AB 2502  
          restores local governments' ability to enact inclusionary  
          housing policies by clarifying that the Costa-Hawkins rent  
          control law does not apply to inclusionary housing policies.   
          This bill amends the state's Planning and Zoning law to indicate  
          that inclusionary zoning is an allowable land use power.   
          Article XI, Section 7 of the California Constitution grants  
          counties and cities the exercise of police power, which allows  
          them 'to make and enforce within its limits all local, police,  
          sanitary, and other ordinances and regulations not in conflict  
          with general laws.'  Many cities and counties have implemented  
          inclusionary housing ordinances as a land use regulation under  
          their police power.  Inclusionary housing ordinances require  
          that developers allocate a certain percentage of housing units  
          in a new development to be affordable to low- and  
          moderate-income households.


          "Nearly 170 cities and counties in California have implemented  
          inclusionary housing policies to address the shortage of  








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          affordable housing across the state.  These ordinances vary in  
          the inclusionary housing unit requirements, depth of  
          affordability, and alternative methods of compliance for  
          developers.  Since 2003, inclusionary programs have produced  
          more than 30,000 affordable housing units to working households,  
          seniors, and special needs populations.  AB 2502 restores local  
          governments' ability to enact inclusionary housing policies by  
          clarifying that the Costa-Hawkins rent control law does not  
          apply to inclusionary housing policies.


          "In 2009, a state appellate court ruling in the Palmer v. City  
          of Los Angeles case indicated that the state's Costa-Hawkins  
          Rental Housing Act prohibits local governments from creating  
          affordable rental housing through local inclusionary programs.


          "AB 2502 is identical to AB 1229 (Atkins), which Governor Brown  
          vetoed in 2013.  In his veto message, the Governor indicated  
          that prior to making a legislative change regarding inclusionary  
          housing, he wanted to wait for the California Supreme Court to  
          issue its decision on the California Building Industry  
          Association (CBIA) v. City of San Jose case.  


          In this case, CBIA argued that San Jose's 15% inclusionary  
          housing ordinance is unconstitutional on the basis of the Fifth  
          Amendment, which indicates that private property should not be  
          taken for public use without just compensation.  In June 2015,  
          the Supreme Court unanimously upheld San Jose's inclusionary  
          housing ordinance and ruled that the ordinance is an exercise of  
          the city's police power."
          Prior Legislation:   AB 1229 (Atkins, 2013) would have expressly  
          authorized cities and counties to establish inclusionary housing  
          requirements as a condition of development.  The bill further  
          declares the intent of the Legislature to supersede any holding  
          or dicta in Palmer v. City of Los Angeles that conflicts with  
          this authority.  









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          AB 1229 was vetoed with the following message: 


            "This bill would supersede the holding of Palmer v. City of  
            Los Angeles and allow local governments to require  
            inclusionary housing in new residential development projects.   
            As Mayor of Oakland, I saw how difficult it can be to attract  
            development to low and middle income communities.  Requiring  
            developers to include below-market units in their projects can  
            exacerbate these challenges, even while not meaningfully  
            increasing the amount of affordable housing in a given  
            community. The California Supreme Court is currently  
            considering when a city may insist on inclusionary housing in  
            new developments. I would like the benefit of the Supreme  
            Court's thinking before we make legislative adjustments in  
            this area."


           Arguments in Support:  According to supporters, "AB 2502  
          clarifies state law and allows jurisdictions to choose the  
          affordable housing policies that fit the development context in  
          their communities.  Local inclusionary housing programs have  
          provide one of the most effective tools for producing new homes  
          affordable to working families and creating strong, diverse  
          neighborhoods with a range of housing choices. Nearly 170 cities  
          and counties in California have adopted inclusionary housing  
          polices as a complement to other local, state, and federal  
          strategies to address the state's ongoing affordable housing  
          shortage. "  


           Arguments in Opposition  :  According to opponents, "this bill  
          does more than respond to Palmer by expressly authorizing local  
          governments to condition all market-rate development on the  
          provision of below market-rate affordable housing, not limited  
          to rental development which was the subject of the Palmer case.   
          Furthermore this measure mandates prices controls on market-rate  
          housing projects, which will manifest as a tax on new homebuyers  








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          and renters.  The net result would be a damper on housing  
          production and negative impacts to local economies and  
          employment centers." 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Non-Profit Housing Association of Northern California (sponsor)


          Alameda County Board of Supervisors


          Alliance for Community Transit - Los Angeles (ACT-LA)


          American Planning Association, California Chapter


          Asian Pacific Environmental Network


          Bay Area Regional Health Inequities Initiative


          Burbank Housing Development Corporation


          California Coalition for Rural Housing


          California Housing Consortium









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          California Housing Partnership Corporation


          California Pan-Ethnic Health Network


          California Rural Legal Assistance Foundation


          California State Association of Counties


          Century Housing


          Chinatown Community Development Center


          Cities Association of Santa Clara County


          City and County of San Francisco


          City of Belmont


          City of Freemont


          City of Napa


          City of San Jose


          City of Sunnyvale









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          City of Walnut Creek


          City of West Hollywood


          Community Housing Opportunities Corporation


          Community Housing Partnership


          Community Legal Services in East Palo Alto


          Contra Costa County Board of Supervisors


          East Bay Housing Organizations


          East LA Community Corporation


          Every One Home


          Faith in Action Bay Area


          Greenbelt Alliance 


          Greenlining Institute


          Grounded Solutions Network









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          HIP Housing


          Housing California


          Koreatown Immigrant Workers Alliance (KIWA)


          Law Foundation of Silicon Valley


          League of California Cities


          League of Women Voters of California


          Little Tokyo Service Center


          Los Angeles County Board of Supervisors 


          Marin County Board of Supervisors


          MidPen Housing Corporation


          Multicultural Communities for Mobility


          National Association of Social Workers, California Chapter


          Northern California Community Loan Fund









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          Peer Advocated SRHT


          People's Self-Help Housing


          Physicians for Social Responsibility-LA (PSR-LA)


          Planning and Conservation League


          Public Advocates, Inc.


          Public Counsel


          San Diego Housing Federation


          San Francisco Council of Community Housing Organizations


          Sonoma County Board of Supervisors


          Southeast Asian Community Alliance


          St. Mary's Center


          Strategic Actions for a Just Economy (SAJE)


          T.R.U.S.T. South LA









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          Tenants Together


          Thai Community Development Center


          Western Center on Law and Poverty



          Opposition

          Apartment Association California Southern Cities


          Apartment Association of Greater Los Angeles


          Apartment Association of Orange County


          California Apartment Association


          California Association of Realtors


          California Building Industry Association


          California Business Properties Association 


          California Chamber of Commerce 


          East Bay Rental Housing Association









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          GH Palmer Associates


          North Valley Property Owner Association


          San Diego County Apartment Association


          Santa Barbara Rental Property Association


          Southwest California Legislative Council




          Analysis Prepared by:Lisa Engel / H. & C.D. / (961) 319-2085