BILL ANALYSIS Ó
AB 2584
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Date of Hearing: May 3, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2584
(Daly) - As Amended April 25, 2016
SUBJECT: LAND USE: HOUSING DEVELOPMENT
KEY ISSUE: SHOULD A HOUSING ORGANIZATION BE AUTHORIZED TO BRING
AN ACTION FOR ENFORCEMENT OF THE HOUSING ACCOUNTABILITY ACT
(HAA) AND TO COLLECT ATTORNEYS' FEES IF A COURT FINDS THAT A
LOCAL GOVERNMENT HAS VIOLATED THE HAA?
SYNOPSIS
The Housing Accountability Act, or HAA, has been referred to
colloquially as the "Anti NIMBY law." (Schellinger Brothers v.
City of Sebastopol (2009) 179 Cal.App.4th 1245, 1253, fn. 9.)
The purpose of the HAA is to limit the ability of local
governments to "reject or make infeasible housing developments ?
without a thorough analysis of the economic, social, and
environmental effects of the action." California courts have
interpreted the HAA broadly in an effort to carry out the
Legislature's statement that "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[.]" The HAA specifically gives "a person
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who would be eligible to apply for residency in the development
or emergency shelter" standing to file a complaint pursuant to
the HAA. Existing law has been interpreted to give an
association standing to bring a suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
the individual members in the lawsuit. Existing law also
requires a court to award attorneys' fees to the plaintiff or
petitioner who challenges a decision by a local government under
the HAA and prevails in the action, except under extraordinary
circumstances in which the court finds that awarding fees would
not further the purposes of the HAA.
This bill authorizes a "housing organization" to bring an action
to enforce the HAA. By extending the standing provision to
"housing organization" and defining such an organization as 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, this bill is arguably a very
modest expansion of existing law. By extending the ability to
collect attorneys' fees to a housing organization, the bill
appears to further the Legislature's purpose in enacting the HAA
that it is "the policy of the state that a local government not
reject or make infeasible housing developments, including
emergency shelters . . . without a thorough analysis of the
economic, social, and environmental effects of the action" and
further dissuade local governments from violating the HAA.
Sponsored by the California Apartment Association and supported
by the Apartment Association of Greater Los Angeles; Santa
Barbara Rental Property Association; and Western Center on Law
and Poverty, this bill recently passed the Assembly Housing and
Community Development Committee by a vote of 6-1. It is opposed
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by the League of California Cities.
SUMMARY: Authorizes a "housing organization" to bring an action
to enforce the Housing Accountability Act (HAA). Specifically,
this bill:
1)Defines a "housing organization" as 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.
2)Authorizes a housing organization to bring an action against a
local agency to enforce the HAA.
EXISTING LAW:
1)Makes the following declarations and findings about the
statewide importance of the availability of affordable
housing:
a) The lack of housing, including emergency shelters, is a
critical problem that threatens the economic,
environmental, and social quality of life in California.
b) 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.
c) The consequences from the lack of housing includes
discrimination against low-income and minority households,
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lack of housing to support employment growth, imbalance in
jobs and housing, reduced mobility, urban sprawl, excessive
commuting, and air quality deterioration.
d) 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.
e) It is the policy of the state that a local government
shall not reject or make infeasible housing developments,
including emergency shelters, that contribute to meeting
the need for affordable housing without a thorough analysis
of the economic, social, and environmental effects of the
action. (Government Code Section 65589.5. Unless
otherwise stated, all further statutory references are to
this section of the Government Code.)
2)Establishes the HAA, which among other things, provides that a
local agency shall not disapprove a housing development
project, as defined, or condition approval, in a manner that
renders the project infeasible for development, as provided,
unless a local agency makes written findings based upon
substantial evidence in the record according to specified
requirements. (Ibid.)
3)Defines "housing development project" as either: (1)
residential units only; (2) mixed-use developments consisting
of residential and nonresidential uses as specified; or (3)
transitional housing or supportive housing. (Ibid.)
4)Defines "disapprove the development project" to include any
instance in which a local agency either: (1) votes on a
proposed housing development project and the application is
disapproved; or (2) fails to comply with the required time
period for approval or disapproval required by law. (Ibid.)
5)Allows an individual to bring an action against a local agency
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to enforce the HAA if the individual would be eligible to
apply for residency in the proposed development or emergency
shelter. (Ibid.)
6)Provides that in an action to enforce an HAA violation, a
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. (Ibid.)
7)Allows an association to have standing to bring a suit on
behalf of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's purpose;
and (c) neither the claim asserted nor the relief requested
requires the participation of the individual members in the
lawsuit. (Property Owners of Whispering Palms, Inc. v.
Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 673; see
also Quail Lakes Owners Association v. Kozina (2012) 204
Cal.App.4th 1132.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: The HAA has been referred to colloquially as the
"Anti NIMBY law." (Schellinger Brothers v. City of Sebastopol
(2009) 179 Cal.App.4th 1245, 1253, fn. 9.) The purpose of the
HAA is to limit the ability of local governments to "reject or
make infeasible housing developments ? without a thorough
analysis of the economic, social, and environmental effects of
the action." (Subdivision (b).) Subdivision (j) requires that
"[w]hen a proposed housing development project complies with
applicable, objective general plan and zoning standards and
criteria," the local agency which "proposes to disapprove the
project ? shall base its decision regarding the proposed housing
development project" upon specific written findings "supported
by substantial evidence" on the record. Specifically, the local
agency must find the following before rejecting a project: (1)
the housing development project would have a specific, adverse
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impact upon the public health or safety unless the project is
disapproved; and (2) there is no feasible method to
satisfactorily mitigate or avoid the adverse impact other than
the disapproval of the housing development project.
California courts have interpreted the HAA broadly in an effort
to carry out the Legislature's statement that "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[.]" (Subdivision (b).) For
example, in Honchariw v. County of Stanislaus (2011) 200
Cal.App.4th 1066, the Board of Supervisors of the County of
Stanislaus (the Board) voted not to approve appellant Nicholas
Honchariw's proposed development project. The Board did not make
any Subdivision (j) findings. Appellant brought an
administrative mandamus action in superior court to obtain what
he contended was the required compliance with the statute. The
superior court concluded that Subdivision (j) findings were not
required because the project did not comply with "applicable,
objective general plan and zoning standards and criteria,
including design review standards, in effect." (Id, at pp.
1080.) The appellate court disagreed:
Any conclusion by the trial court that the proposed project
failed to comply with County Code section 20.52.210 is
therefore premature and lacks evidentiary support. Concluding
that appellant's proposed project did not fail to comply with
County Code section 20.52.210 is consistent with the
qualifying language of Government Code section 65589.5 (j),
which states that if a proposed project "complies with
applicable, objective general plan and zoning standards and
criteria, including design review standards ? ," then
subdivision (j) findings are triggered." (Ibid.)
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The HAA also requires trial courts to retain unusually close
oversight of HAA disputes in cases where a local government is
found to have violated the HAA, presumably to ensure that the
local government comes into compliance with the law.
Subdivision (k) requires, in any action where a court finds that
the local agency disapproved a project without making the
requisite findings required by the HAA, the court to 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.
Existing Authority of Associations to Enforce the HAA. The FAA
specifically gives "a person who would be eligible to apply for
residency in the development or emergency shelter" standing to
file a complaint pursuant to the HAA. (Subdivision (k).)
Existing law has been interpreted to give an association
standing to bring a suit on behalf of its members when: (a) its
members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of the
individual members in the lawsuit. (Property Owners of
Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132
Cal.App.4th 666, 673; see also Quail Lakes Owners Association v.
Kozina (2012) 204 Cal.App.4th 1132.)
By extending the standing provision to "housing organization"
and defining such an organization as "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," this bill is arguably a very modest expansion of
existing law.
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Existing Authority for Complainant to Collect Attorneys' Fees.
Subdivision (k) requires, in any case where a court finds that a
local agency has violated the HAA by disapproving a project
without making the requisite findings required by the HAA, the
court to 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. Presumably, the Legislature
included the attorneys' fees requirement to carry out its strong
statement in Subdivision (b) of "the policy of the state that a
local government not reject or make infeasible housing
developments, including emergency shelters . . . without a
thorough analysis of the economic, social, and environmental
effects of the action" and further dissuade local governments
from violating the HAA. Expanding the ability to collect
attorneys' fees to a "housing organization," as proposed by this
bill, also appears to further this legislative intent.
ARGUMENTS IN SUPPORT: The sponsor, the California Apartment
Association, writes in support of this bill as follows:
For nearly 30 years, the HAA has been a tool to ensure that
new housing gets constructed. Under the HAA, local governments
must follow certain legal mandates before denying a housing
development application. Since its inception, thirteen
separate bills were signed into law to strengthen its
provisions and to add more clarity. Currently, only the
applicant of a proposed housing project or potential future
tenants may bring legal action if a local government fails to
comply with the HAA. AB 2584 would strengthen the HAA by
expanding the list of those who can help enforce its
provisions. Similar to the state's housing element law and
other statutes in California, AB 2584 would allow an entity
that represents a housing provider, or represents any person
who would be eligible to apply for residency in a proposed
housing development, to bring an action to enforce the
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provisions of the HAA.
AB 2584 applies appropriate pressure on local governments and
citizens who attempt to stop the projects with no good cause.
Ultimately, allowing organizations that represent housing or
tenant interests to enforce the HAA will help combat NIMBY
concerns and lead to the construction of more housing.
Similarly, the Western Center on Law and Poverty writes the
following in support of this bill:
AB 2584 would further strengthen the HAA by expanding the list
of those who can help enforce its provisions. Similar to the
state's housing element law and other statutes in California,
AB 2584 would allow an entity that represents a housing
provider, or represents any person who would be eligible to
apply for residency in a proposed housing development, to
bring an action to enforce the provisions of the HAA. The bill
applies appropriate pressure on local governments and citizens
who attempt to stop affordable housing projects with no good
cause. Allowing organizations that represent housing or tenant
interests to enforce the HAA will help combat NIMBY concerns
and lead to the construction of more affordable housing.
ARGUMENTS IN OPPOSTION: Writing on March 31, 2016, regarding an
earlier version of the bill, the League of California Cities
writes the following in opposition to this bill:
[AB 2584] adds an entity that represents a housing provider or
person eligible to live in the housing to the list of those
who can bring a lawsuit. This is a serious expansion of the
existing law. If a city has violated the law, then the
developer should be the first person to bring legal action.
Such a person will, in most cases, be represented by an
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"entity that represents people eligible to live in the
housing." Allowing those entities to sue on their own means
disconnection the city's decision from that it affects. The
measure also provides for attorney's fees which could be a
significant financial burden on our cities.
It is unclear whether the recent amendments to the bill (taken
by the author in the Assembly Housing and Community Development
Committee on April 25, 2016) to define the term, "entity
representing a housing provider," reduce the concerns of the
League of California Cities to any extent.
PRIOR SIMILAR LEGISLATION: AB 369 (Dutra, 2001) gives
developers the ability to challenge local governments when they
denied housing in violation of the HAA and strengthens the state
affordable housing law by requiring a court to award attorney's
fees to an affordable housing developer that has had a project
unfairly denied by a local agency.
SB 575 (Torlakson, Ch. 601, Stats. of 2005) strengthens the
lawsuit provisions in the HAA by requiring that a local
government base its finding on having met the regional housing
need (RHNA) requirements in the income category that corresponds
to the project; allowing for a private attorney general action
to enforce the HAA; authorizing the assessment of fines on local
governments that are found to have acted in bad faith in
disapproving a project and failed to carry out the court's order
or judgment within 60 days; and allowing a court to vacate the
action of a local government and deem a project approved with
court-approved standard conditions.
REGISTERED SUPPORT / OPPOSITION:
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Support
California Apartment Association
Apartment Association of Greater Los Angeles
Santa Barbara Rental Property Association
Western Center on Law and Poverty
Opposition
League of California Cities
Analysis Prepared by:Alison Merrilees and Eric Dang / JUD. /
(916) 319-2334
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