BILL ANALYSIS Ó
AB 2685
Page 1
Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Susan Talamantes Eggman, Chair
AB 2685
(Lopez) - As Amended March 18, 2016
SUBJECT: Housing elements: adoption.
SUMMARY: Requires a local planning agency to make a draft
housing element available
to the public prior to the submission to the Department of
Housing and Community Development (HCD). Specifically, this
bill:
1)Requires a planning agency, at least 30 days prior to the
submission of a draft housing element to HCD, to make the
draft element available to the public.
2)Requires the planning agency to circulate public comments
received to the legislative body before it adopts the housing
element.
3)Makes other minor and technical changes.
4)Specifies that no reimbursement is required by this act
because a local agency or school district has the authority to
levy service charges, fees, or assessments sufficient to pay
AB 2685
Page 2
for the program or level of service mandated by this act.
EXISTING LAW:
1)Establishes, pursuant to the Ralph M. Brown Act (Brown Act),
standards for local public agencies' open and public meetings.
Requires the meetings of local governments' legislative
bodies to be "open and public," thereby ensuring the people's
access to information so they may retain control over the
public agencies that serve them. Prohibits closed meetings,
with specified exceptions, and requires local agencies to post
hearing notices, provide the public with copies of materials
distributed during open meetings, and follow related
provisions to ensure public access to the meetings and
deliberations of local agencies' legislative bodies.
2)Requires every city and county to prepare and adopt a general
plan containing seven mandatory elements, including a housing
element.
3)Requires a jurisdiction's housing element to identify and
analyze existing and projected housing needs, identify
adequate sites with appropriate zoning to meet the housing
needs
of all income segments of the community, and ensure that
regulatory systems provide opportunities for, and do not
unduly constrain, housing development.
4)Requires cities and counties located within the territory of a
metropolitan planning organization (MPO) to revise their
housing elements every eight years following the adoption of
AB 2685
Page 3
every other regional transportation plan. Cities and counties
in rural non-MPO regions must revise their housing elements
every five years.
5)Requires, prior to each housing element revision, that each
council of governments (COG), in conjunction with HCD, prepare
a regional housing needs assessment (RHNA) and allocate to
each jurisdiction in the region its fair share of the housing
need for all income categories.
6)Requires the housing element to contain a program, which sets
forth a schedule of actions during the planning period, each
with a timeline for implementation.
7)Requires the jurisdiction to submit a draft housing element to
HCD at least 90 days prior to adopting the housing element, or
60 days prior to amending the housing element.
8)Requires HCD to review the draft and report its written
findings to the local jurisdiction within 90 days of its
receipt of the draft in the case of an adoption or within 60
days of its receipt in the case of a draft amendment.
9)Requires HCD to consider written comments from any public
agency, group, or person regarding the draft or adopted
element or amendment under review.
FISCAL EFFECT: This bill is keyed fiscal.
AB 2685
Page 4
COMMENTS:
1)Bill Summary. This bill requires a local planning agency to
make a draft housing element available to the public at least
30 days prior to submission to HCD. The bill also requires
the planning agency to circulate public comments received to
the legislative body before it adopts the housing element.
This bill is an author-sponsored measure.
2)Author's Statement. According to the author, "Existing law
requires local planning agencies to involve the public during
the development of the housing element and allows the public
to provide comments during the process as per Government code
section 65583 (c)(8), which requires local governments to
"?make a diligent effort to achieve public participation?in
the development of the housing element?"
"However, nothing is said regarding public participation after
the housing element has been developed and ready for
submission to HCD. This bill would ensure that community
members have another opportunity to engage in public
participation with the housing element. This bill further
solidifies the importance of public participation by
requiring local planning agencies to make the draft housing
element documents available to the public 30 days before they
are submitted to HCD and ensures that that their comments are
reviewed by local decision makers before they vote to adopt
the element.
"According to local community advocates in the 39th Assembly
District, they have experienced being left out of the planning
process, specifically as it pertains to housing issues.
Advocates state that developers do not finish projects or
AB 2685
Page 5
finish projects and do not offer low income housing (mostly
privately or city funded). These developers seem to win every
bid at the local level to build city projects and/or build
housing projects.
"The community feels very strongly about the need to be
engaged in the public participation process at every
opportunity and would like more opportunities to voice their
views/comments/suggestions/opposition. Advocates feel that
when they do make comments about housing issues that the City
does not fully take those comments into account. In the case
of the housing element update, it is too late to provide
comments because the City is taking a vote on the approved
housing elements and is not likely to want to amend the
approved housing element. This bill would codify that the
community has one more time to comment, that the City has to
review public comment before taking vote to adopt the plan."
3)Background on the Ralph M. Brown Act. The Brown Act
establishes standards for local public agencies' open and
public meetings and requires the meetings of local
governments' legislative bodies to be "open and public,"
thereby ensuring the people's access to information so they
may retain control over the public agencies that serve them.
The Brown Act prohibits closed meetings, with specified
exceptions, and requires local agencies to post hearing
notices, provide the public with copies of materials
distributed during open meetings, and follow related
provisions to ensure public access to the meetings and
deliberations of local agencies' legislative bodies.
4)Background on the Housing Element. Every local government is
required to prepare a housing element as part of its general
plan. The housing element process starts when HCD determines
the number of new housing units a region is projected to need
at all income levels (very low-, low-, moderate-, and
AB 2685
Page 6
above-moderate income) over the course of the next housing
element planning period to accommodate population growth and
overcome existing deficiencies in the housing supply. This
number is known as the regional housing needs assessment
(RHNA). The council of governments (COG) for the region, or
HCD for areas with no COG, then assigns a share of the RHNA
number to every city and county in the region based on a
variety of factors.
The housing element must show how the city or county plans to
accommodate its share of the RHNA. The housing element must
include an inventory of sites already zoned for housing. If a
community does not have enough sites within its existing
inventory of residentially zoned land to accommodate its
entire RHNA, then the community must adopt a program to rezone
land within the first three years of the planning period.
During the development of the housing element, local
governments are required to make a "diligent" effort to
achieve public participation. Regarding public participation,
HCD has previously stated: "Most jurisdictions use a variety
of approaches such as workshops, surveys, and targeted
outreach with community representatives to garner public
participation. However, there are not consistent standards on
what constitutes "diligent" resulting in a variety of
strategies and efforts that may or may not achieve successful
public participation. As a result, housing elements may not
accurately reflect the housing needs of the community."
Before a local government can adopt or amend its housing
element, it must submit a draft to HCD for review. This is
another opportunity for public participation, as HCD must
consider any written comments it receives from a public
agency, group, or person during the review process. The
findings of HCD's review have to be considered by the local
government prior to its adoption of the housing element or
AB 2685
Page 7
amendment to the housing element.
5)Policy Considerations. The Committee may wish to consider the
following:
a) Brown Act. The express purpose of the Brown Act is to
assure that local government agencies conduct the public's
business openly and publicly. Meetings of a planning
agency must be held pursuant to provisions of the Brown
Act. The Committee may wish to ask the author why the
existing process of posting hearing notices, providing the
public with copies of materials distributed during open
meetings, and ensuring public access to the meetings and
deliberations of local agencies' legislative bodies, does
not suffice.
b) Format for Availability. The bill requires the planning
agency to make the draft element "available to the public,"
but does not specify how this can be achieved. Is this
through the planning agency's Internet Web site? Is it by
posting the draft element on a touch-screen kiosk in city
hall? Making paper copies of the draft available at the
counter in the planning department?
According to "Open and Public IV: A Guide to the Ralph M.
Brown Act" the Brown Act requires that an agenda must be
posted at least 72 hours before the regular meeting in a
location 'freely accessible to members of the public'. The
courts have not definitely interpreted the 'freely
accessible requirement,' although the California Attorney
General has interpreted this provision to require locations
accessible to the public 24 hours a day during the 72-hour
period, but any of the 72 hours may fall on a weekend.
Posting may also be made on a touch screen electronic kiosk
accessible without charge to the public 24 hours a day
AB 2685
Page 8
during the 72-hour period. Only posting an agenda on an
agency's Web site is inadequate since there is no universal
access to the internet.
c) Potential for Lawsuits? The Committee may wish to
consider whether the lack of clarity in the bill's
requirements on making the draft housing element "available
to the public" could potentially open local agencies up to
lawsuits about whether the local agency has adequately
complied with this requirement to make the draft available
to the public.
d) HCD Housing Policy and Practices Advisory Group. HCD
currently has a Housing Policy and Practices Advisory Group
subcommittee working on public participation issues. The
Committee may wish to ask the author to engage in that
process so that her efforts to increase the avenues for
public participation are aligned with that subcommittee.
6)Committee Amendments. Given the concerns raised previously,
the Committee may wish to ask the author to strike language
that requires "at least 30 days prior to the submission of the
draft element to the department, the planning agency shall
make the draft element available to the public."
7) Arguments in Support. None on file.
8)Arguments in Opposition. None on file.
9)Double-Referral. This bill was heard by the Housing and
Community Development Committee on April 13, 2016, where it
passed with a 6-0 vote.
AB 2685
Page 9
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
AB 2685
Page 10
Concerns
League of California Cities
Opposition
None on file
Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958