BILL ANALYSIS Ó AB 2584 Page 1 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 AB 2584 Page 2 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 AB 2584 Page 3 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, AB 2584 Page 4 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 AB 2584 Page 5 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 AB 2584 Page 6 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.) AB 2584 Page 7 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. AB 2584 Page 8 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 AB 2584 Page 9 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 AB 2584 Page 10 "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: AB 2584 Page 11 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 AB 2584 Page 12