Amended in Assembly April 25, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2584

Introduced by Assembly Member Daly

(Coauthors: Assembly Members begin delete Low end delete begin insert Atkins, Low, end insert and Santiago)

February 19, 2016

An act to amend Section 65589.5 of the Government Code, relating to housing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2584, as amended, Daly. Land use: housing development.

The Housing Accountability Act, among other things, prohibits a local agency from disapproving a housing development project for very low, low-, or moderate-income households or an emergency shelter unless the local agency makes specified written findings. The act authorizes an applicant or person who would be eligible to apply for residency in the development or emergency shelter to bring an action to enforce the act.

This bill begin delete would end delete begin insert would, in addition, end insert authorize begin delete an entity that represents a housing provider or a person who would be eligible to apply for residency end delete begin insert a housing organization, as defined, end insert to bring an action to enforce the act.

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 65589.5 of the Government Code is
amended to read:

65589.5.  

(a) The Legislature finds and declares all of the
following:

(1) The lack of housing, including emergency shelters, is a
critical problem that threatens the economic, environmental, and
social quality of life in California.

(2) California housing has become the most expensive in the
nation. The excessive cost of the state’s housing supply is partially
caused by activities and policies of many local governments that
limit the approval of housing, increase the cost of land for housing,
and require that high fees and exactions be paid by producers of
housing.

(3) Among the consequences of those actions are discrimination
against low-income and minority households, lack of housing to
support employment growth, imbalance in jobs and housing,
reduced mobility, urban sprawl, excessive commuting, and air
quality deterioration.

(4) Many local governments do not give adequate attention to
the economic, environmental, and social costs of decisions that
result in disapproval of housing projects, reduction in density of
housing projects, and excessive standards for housing projects.

(b) It is the policy of the state that a local government not reject
or make infeasible housing developments, including emergency
shelters, that contribute to meeting the need determined pursuant
to this article without a thorough analysis of the economic, social,
and environmental effects of the action and without complying
with subdivision (d).

(c) The Legislature also recognizes that premature and
unnecessary development of agricultural lands for urban uses
continues to have adverse effects on the availability of those lands
for food and fiber production and on the economy of the state.
Furthermore, it is the policy of the state that development should
be guided away from prime agricultural lands; therefore, in
implementing this section, local jurisdictions should encourage,
to the maximum extent practicable, in filling existing urban areas.

(d) A local agency shall not disapprove a housing development
project, including farmworker housing as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code, for very
low, low-, or moderate-income households, or an emergency
shelter, or condition approval in a manner that renders the project
infeasible for development for the use of very low, low-, or
moderate-income households, or an emergency shelter, including
through the use of design review standards, unless it makes written
findings, based upon substantial evidence in the record, as to one
of the following:

(1) The jurisdiction has adopted a housing element pursuant to
this article that has been revised in accordance with Section 65588,
is in substantial compliance with this article, and the jurisdiction
has met or exceeded its share of the regional housing need
allocation pursuant to Section 65584 for the planning period for
the income category proposed for the housing development project,
provided that any disapproval or conditional approval shall not be
based on any of the reasons prohibited by Section 65008. If the
housing development project includes a mix of income categories,
and the jurisdiction has not met or exceeded its share of the regional
housing need for one or more of those categories, then this
paragraph shall not be used to disapprove or conditionally approve
the project. The share of the regional housing need met by the
jurisdiction shall be calculated consistently with the forms and
definitions that may be adopted by the Department of Housing and
Community Development pursuant to Section 65400. In the case
of an emergency shelter, the jurisdiction shall have met or exceeded
the need for emergency shelter, as identified pursuant to paragraph
(7) of subdivision (a) of Section 65583. Any disapproval or
conditional approval pursuant to this paragraph shall be in
accordance with applicable law, rule, or standards.

(2) The development project or emergency shelter as proposed
would have a specific, adverse impact upon the public health or
safety, and there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact without rendering the
development unaffordable to low- and moderate-income
households or rendering the development of the emergency shelter
financially infeasible. 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. Inconsistency
with the zoning ordinance or general plan land use designation
shall not constitute a specific, adverse impact upon the public
health or safety.

(3) The denial of the project or imposition of conditions is
required in order to comply with specific state or federal law, and
there is no feasible method to comply without rendering the
development unaffordable to low- and moderate-income
households or rendering the development of the emergency shelter
financially infeasible.

(4) The development project or emergency shelter is proposed
on land zoned for agriculture or resource preservation that is
surrounded on at least two sides by land being used for agricultural
or resource preservation purposes, or which does not have adequate
water or wastewater facilities to serve the project.

(5) The development project or emergency shelter is inconsistent
with both the jurisdiction’s zoning ordinance and general plan land
use designation as specified in any element of the general plan as
it existed on the date the application was deemed complete, and
the jurisdiction has adopted a revised housing element in
accordance with Section 65588 that is in substantial compliance
with this article.

(A) This paragraph cannot be utilized to disapprove or
conditionally approve a housing development project if the
development project is proposed on a site that is identified as
suitable or available for very low, low-, or moderate-income
households in the jurisdiction’s housing element, and consistent
with the density specified in the housing element, even though it
is inconsistent with both the jurisdiction’s zoning ordinance and
general plan land use designation.

(B) If the local agency has failed to identify in the inventory of
land in its housing element sites that can be developed for housing
within the planning period and are sufficient to provide for the
jurisdiction’s share of the regional housing need for all income
levels pursuant to Section 65584, then this paragraph shall not be
utilized to disapprove or conditionally approve a housing
development project proposed for a site designated in any element
of the general plan for residential uses or designated in any element
of the general plan for commercial uses if residential uses are
permitted or conditionally permitted within commercial
designations. In any action in court, the burden of proof shall be
on the local agency to show that its housing element does identify
adequate sites with appropriate zoning and development standards
and with services and facilities to accommodate the local agency’s
share of the regional housing need for the very low and low-income
categories.

(C) If the local agency has failed to identify a zone or zones
where emergency shelters are allowed as a permitted use without
a conditional use or other discretionary permit, has failed to
demonstrate that the identified zone or zones include sufficient
capacity to accommodate the need for emergency shelter identified
in paragraph (7) of subdivision (a) of Section 65583, or has failed
to demonstrate that the identified zone or zones can accommodate
at least one emergency shelter, as required by paragraph (4) of
subdivision (a) of Section 65583, then this paragraph shall not be
utilized to disapprove or conditionally approve an emergency
shelter proposed for a site designated in any element of the general
plan for industrial, commercial, or multifamily residential uses. In
any action in court, the burden of proof shall be on the local agency
to show that its housing element does satisfy the requirements of
paragraph (4) of subdivision (a) of Section 65583.

(e) Nothing in this section shall be construed to relieve the local
agency from complying with the congestion management program
required by Chapter 2.6 (commencing with Section 65088) of
Division 1 of Title 7 or the California Coastal Act of 1976
(Division 20 (commencing with Section 30000) of the Public
Resources Code). Neither shall anything in this section be
construed to relieve the local agency from making one or more of
the findings required pursuant to Section 21081 of the Public
Resources Code or otherwise complying with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).

(f) (1) Nothing in this section shall be construed to prohibit a
local agency from requiring the development project to comply
with objective, quantifiable, written development standards,
conditions, and policies appropriate to, and consistent with, meeting
the jurisdiction’s share of the regional housing need pursuant to
Section 65584. However, the development standards, conditions,
and policies shall be applied to facilitate and accommodate
development at the density permitted on the site and proposed by
the development.

(2) Nothing in this section shall be construed to prohibit a local
agency from requiring an emergency shelter project to comply
with objective, quantifiable, written development standards,
conditions, and policies that are consistent with paragraph (4) of
subdivision (a) of Section 65583 and appropriate to, and consistent
with, meeting the jurisdiction’s need for emergency shelter, as
identified pursuant to paragraph (7) of subdivision (a) of Section
65583. However, the development standards, conditions, and
policies shall be applied by the local agency to facilitate and
accommodate the development of the emergency shelter project.

(3) This section does not prohibit a local agency from imposing
fees and other exactions otherwise authorized by law that are
essential to provide necessary public services and facilities to the
development project or emergency shelter.

(g) This section shall be applicable to charter cities because the
Legislature finds that the lack of housing, including emergency
shelter, is a critical statewide problem.

(h) The following definitions apply for the purposes of this
section:

(1) “Feasible” means capable of being accomplished in a
successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors.

(2) “Housing development project” means a use consisting of
any of the following:

(A) Residential units only.

(B) Mixed-use developments consisting of residential and
nonresidential uses in which nonresidential uses are limited to
neighborhood commercial uses and to the first floor of buildings
that are two or more stories. As used in this paragraph,
“neighborhood commercial” means small-scale general or specialty
stores that furnish goods and services primarily to residents of the
neighborhood.

(C) Transitional housing or supportive housing.

(3) “Housing for very low, low-, or moderate-income
households” means that either (A) at least 20 percent of the total
units shall be sold or rented to lower income households, as defined
in Section 50079.5 of the Health and Safety Code, or (B) 100
percent of the units shall be sold or rented to persons and families
of moderate income as defined in Section 50093 of the Health and
Safety Code, or persons and families of middle income, as defined
in Section 65008 of this code. Housing units targeted for lower
income households shall be made available at a monthly housing
cost that does not exceed 30 percent of 60 percent of area median
income with adjustments for household size made in accordance
with the adjustment factors on which the lower income eligibility
limits are based. Housing units targeted for persons and families
of moderate income shall be made available at a monthly housing
cost that does not exceed 30 percent of 100 percent of area median
income with adjustments for household size made in accordance
with the adjustment factors on which the moderate-income
eligibility limits are based.

(4) “Area median income” means area median income as
periodically established by the Department of Housing and
Community Development pursuant to Section 50093 of the Health
and Safety Code. The developer shall provide sufficient legal
commitments to ensure continued availability of units for very low
or low-income households in accordance with the provisions of
this subdivision for 30 years.

(5) “Disapprove the development project” includes any instance
in which a local agency does either of the following:

(A) Votes on a proposed housing development project
application and the application is disapproved.

(B) Fails to comply with the time periods specified in
subdivision (a) of Section 65950. An extension of time pursuant
to Article 5 (commencing with Section 65950) shall be deemed to
be an extension of time pursuant to this paragraph.

(i) If any city, county, or city and county denies approval or
imposes restrictions, including design changes, a reduction of
allowable densities or the percentage of a lot that may be occupied
by a building or structure under the applicable planning and zoning
in force at the time the application is deemed complete pursuant
to Section 65943, that have a substantial adverse effect on the
viability or affordability of a housing development for very low,
low-, or moderate-income households, and the denial of the
development or the imposition of restrictions on the development
is the subject of a court action which challenges the denial, then
the burden of proof shall be on the local legislative body to show
that its decision is consistent with the findings as described in
subdivision (d) and that the findings are supported by substantial
evidence in the record.

(j) When a proposed housing development project complies
with applicable, objective general plan and zoning standards and
criteria, including design review standards, in effect at the time
that the housing development project’s application is determined
to be complete, but the local agency proposes to disapprove the
project or to approve it upon the condition that the project be
developed at a lower density, the local agency shall base its
decision regarding the proposed housing development project upon
written findings supported by substantial evidence on the record
that both of the following conditions exist:

(1) 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.

(2) 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.

(k)  begin insert (1) end insert begin insert   end insert The applicant, a person who would be eligible to apply
for residency in the development or emergency shelter, or begin delete an entity
that represents a housing provider or a person who would be
eligible to apply for residency end delete begin insert a housing organization end insert may bring
an action to enforce this section. If, in any action brought to enforce
this section, a court finds that the local agency disapproved a
project or conditioned its approval in a manner rendering it
infeasible for the development of an emergency shelter, or housing
for very low, low-, or moderate-income households, including
farmworker housing, without making the findings required by this
section or without making sufficient findings supported by
substantial evidence, the court shall issue an order or judgment
compelling compliance with this section within 60 days, including,
but not limited to, an order that the local agency take action on the
development project or emergency shelter. The court shall retain
jurisdiction to ensure that its order or judgment is carried out and
shall award reasonable attorney’s fees and costs of suit to the
plaintiff or petitioner who proposed the housing development or
emergency shelter, except under extraordinary circumstances in
which the court finds that awarding fees would not further the
purposes of this section. If the court determines that its order or
judgment has not been carried out within 60 days, the court may
issue further orders as provided by law to ensure that the purposes
and policies of this section are fulfilled, including, but not limited
to, an order to vacate the decision of the local agency, in which
case the application for the project, as constituted at the time the
local agency took the initial action determined to be in violation
of this section, along with any standard conditions determined by
the court to be generally imposed by the local agency on similar
projects, shall be deemed approved unless the applicant consents
to a different decision or action by the local agency.

begin insert

(2) For purposes of this subdivision, “housing organization”
means a trade or industry group whose local members are
primarily engaged in the construction or management of affordable
housing units or a nonprofit organization whose mission includes
providing or advocating for increased access to affordable housing
for low-income households.

end insert

(l) If the court finds that the local agency (1) acted in bad faith
when it disapproved or conditionally approved the housing
development or emergency shelter in violation of this section and
(2) failed to carry out the court’s order or judgment within 60 days
as described in subdivision (k), the court, in addition to any other
remedies provided by this section, may impose fines upon the local
agency that the local agency shall be required to deposit into a
housing trust fund. Fines shall not be paid from funds that are
already dedicated for affordable housing, including, but not limited
to, redevelopment or low- and moderate-income housing funds
and federal HOME and CDBG funds. The local agency shall
commit the money in the trust fund within five years for the sole
purpose of financing newly constructed housing units affordable
to extremely low, very low, or low-income households. For
purposes of this section, “bad faith” shall mean an action that is
frivolous or otherwise entirely without merit.

(m) Any action brought to enforce the provisions of this section
shall be brought pursuant to Section 1094.5 of the Code of Civil
Procedure, and the local agency shall prepare and certify the record
of proceedings in accordance with subdivision (c) of Section 1094.6
of the Code of Civil Procedure no later than 30 days after the
petition is served, provided that the cost of preparation of the record
shall be borne by the local agency. Upon entry of the trial court’s
order, a party shall, in order to obtain appellate review of the order,
file a petition within 20 days after service upon it of a written
notice of the entry of the order, or within such further time not
exceeding an additional 20 days as the trial court may for good
cause allow. If the local agency appeals the judgment of the trial
court, the local agency shall post a bond, in an amount to be
determined by the court, to the benefit of the plaintiff if the plaintiff
is the project applicant.

(n) In any action, the record of the proceedings before the local
agency shall be filed as expeditiously as possible and,
notwithstanding Section 1094.6 of the Code of Civil Procedure or
subdivision (m) of this section, all or part of the record may be
prepared (1) by the petitioner with the petition or petitioner’s points
and authorities, (2) by the respondent with respondent’s points and
authorities, (3) after payment of costs by the petitioner, or (4) as
otherwise directed by the court. If the expense of preparing the
record has been borne by the petitioner and the petitioner is the
prevailing party, the expense shall be taxable as costs.

(o) This section shall be known, and may be cited, as the
Housing Accountability Act.