BILL ANALYSIS                                                                                                                                                                                                    



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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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