BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2685


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          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  








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            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  








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            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.










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          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  








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            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  








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            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  








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            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  








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               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.  









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          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file













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          Concerns





          League of California Cities




          Opposition


          None on file




          Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958