BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 602|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 602
Author: Feuer (D), et al
Amended: 6/21/10 in Senate
Vote: 21
SENATE TRANSPORTATION & HOUSING COMM : 6-3, 6/29/10
AYES: Lowenthal, DeSaulnier, Kehoe, Pavley, Simitian, Wolk
NOES: Huff, Ashburn, Harman
ASSEMBLY FLOOR : Not relevant
SUBJECT : Statute of limitations on housing element
challenges
SOURCE : California Rural Legal Assistance Foundation
Housing California
DIGEST : This bill restores the ability of an entity to
submit a notice citing deficiencies in a citys or countys
housing element at any time during the housing element
planning period and then file a challenge within one year
if city or county fails to address the deficiencies within
60 days.
ANALYSIS : The Planning and Zoning Law requires cities
and counties to prepare and adopt a general plan, including
a housing element, to guide the future growth of a
community. Following a staggered statutory schedule,
cities and counties located within the territory of a
metropolitan planning organization (MPO) must revise their
housing elements every eight years, and cities and counties
CONTINUED
AB 602
Page
2
in rural non-MPO regions must revise their housing elements
every five years. These five- and eight-year periods are
known as the housing element planning period.
Before each revision, each community is assigned its fair
share of housing for each income category through the
regional housing needs assessment (RHNA) process. A
housing element must identify and analyze existing and
projected housing needs, identify adequate sites with
appropriate zoning to meet its share of the RHNA, and
ensure that regulatory systems provide opportunities for,
and do not unduly constrain, housing development. The
Department of Housing and Community Development (HCD)
reviews both draft and adopted housing elements to
determine whether or not they are in substantial compliance
with the law.
The Planning and Zoning Law and the Subdivision Map Act
also includes a number of sections governing zoning and
entitlements specifically related to housing, including:
? The Housing Accountability Act, which requires a city or
county to make one or more specified findings in order to
disapprove a particular housing development.
? A provision requiring cities and counties, when adopting
an ordinance which limits the number of housing units
which may be constructed on an annual basis, to make
findings as to the public health, safety, and welfare
benefits that justify reducing the housing opportunities
of the region.
? Density bonus law, which requires cities and counties to
grant a developer a density bonus, incentives, and
concessions when the developer proposes to include
specified percentages of affordable housing within a
development.
? The Least Cost Zoning Law, which requires cities and
counties to designate and zone sufficient vacant land for
residential use with appropriate standards to meet
housing needs for all income categories and to contribute
to producing housing at the lowest possible cost.
AB 602
Page
3
? A requirement that, when determining whether to approve a
tentative subdivision map, a city or county shall apply
only those ordinances, policies, and standards in effect
as of the date the developer's application is deemed
complete.
Prior to a recent court decision, it was understood that
current law allowed a party to challenge the adequacy of a
city's or county's housing element at any time during a
planning period, provided that the challenger brought the
action "in support of or to encourage or facilitate the
development of housing that would increase the community's
supply of [affordable] housing." The challenging party was
required first to serve the city or county with a notice
identifying the deficiencies in the housing element. After
60 days or the date on which the city or county took final
action in response to the notice, whichever occurred first,
the challenging party had one year to file the action in
court. This process and statute of limitations also
applied to actions brought pursuant to the housing-related
statutes listed above.
In 2006 Urban Habitat Program brought suit to challenge the
City of Pleasanton's housing policies, including the city's
annual cap on housing permits and the city's cap on the
aggregate number of permissible housing units, both of
which Urban Habitat claimed were insufficient to allow the
city to meet its RHNA obligation. In 2008, the First
District California Court of Appeals issued an unpublished
decision in the case of Urban Habitat v. Pleasanton
allowing the case to proceed with respect to some causes of
action, but ruling that the challenge to the housing
element itself was time-barred. The court stated:
Although the statute does not specify the time within
which [a deficiency] notice must be given, it is our
conclusion that the statute must be interpreted as
containing a time limit within which this requirement
must be met? In sum, a party bringing a challenge
governed by section 65009, subdivision (d), has 90
days from the date a legislative action is taken or
approval is given to notify the local land use
authority of any claimed deficiencies in such an
action or approval. Its claim then accrues 60 days
AB 602
Page
4
after it gives this notice.
In other words, instead of being able to initiate a
challenge to a deficient housing element at any time during
the planning period, housing advocates and other interested
parties may now only initiate such a challenge by
submitting a deficiency notice within 90 days of the
housing element's adoption.
This bill states the intent of the Legislature to modify
the portion of the Urban Habitat opinion relating to the
housing element statute of limitations and restores the
ability of parties bringing a housing element action "in
support of or to encourage or facilitate the development of
housing that would increase the community's supply of
[affordable] housing" to send a 60-day deficiency notice at
any time after the adoption, amendment, or revision of a
housing element. The bill further provides that after 60
days or the date on which the city or county takes final
action in response to the notice, whichever occurs first,
the challenging party has one year to file the action in
court. The bill does not alter the statute of limitations
for actions brought under the other housing-related
statutes listed above.
Background
The statutory language interpreted by the court and at
issue in this bill was added to statute by AB 998 (Waters),
Chapter 1138, Statutes of 1983, a bill sponsored by the
League of California Cities and the California Building
Industry Association. AB 998 created a short statute of
limitations period for land use decisions generally but
provided a specific exception to protect the ability to
challenge deficient housing elements. The Senate Housing
and Land Use Committee and the Senate Third Reading
analysis of the bill stated that the bill:
Specifies that for challenges in support of low- and
moderate-income housing requirements, the petitioner
shall notice local government 60 days prior to filing
action. The [one-year] statute of limitations then
begins on the first day the legislative body fails to
act.
AB 602
Page
5
In the intervening 25 years prior to the Urban Habitat
ruling, housing advocates filed and successfully settled at
least ten cases in which the 60-day deficiency notice was
sent more than 90 days after adoption of the city's or
county's housing element. In none of these cases was the
timeliness on the advocates' suit contested. Likewise, six
bills amended other portions of this statute during those
intervening years, and there was never any controversy
surrounding the lack of a deadline for housing advocates to
serve a deficiency notice nor any attempt to change the
statute in this regard.
Current level of housing element compliance . According to
HCD's website as of June 7, 2010, only 46 percent of cities
and counties have adopted an HCD-approved housing element
for the current planning period that began in 2005 for the
San Diego region, 2008 for the Southern California, Fresno,
Kern, and Sacramento regions, and the summer of 2009 for
the remaining areas of the state.
Unlocking the private market . The purpose of housing
element law is to create opportunities for the private
housing market to function. Builders cannot build without
access to appropriately zoned land, and current land use
plans in many cities and counties in California fail to
provide sufficient opportunities to accommodate projected
population growth. The San Diego Association of
Governments' Regional Comprehensive Plan describes this
typical California paradox in the following way:
Under current plans and policies, more than 90 percent
of [the San Diego region's] remaining vacant land
designated for housing is planned for densities of
less than one home per acre, and most is in the rural
back country areas dependent upon scarce groundwater
supplies. And of the remaining vacant land planned for
housing in the 18 incorporated cities, only about
seven percent is planned for multifamily housing. When
taken together, the current land use plans of the 19
local jurisdictions do not accommodate the amount of
growth anticipated in our region. SANDAG's population
forecast, which reflects the current adopted local
land use plans in the region, projects that while
AB 602
Page
6
population will increase by 37 percent by 2030,
housing will grow by just 30 percent. The forecast
shows that if local plans are not changed, demand for
housing will continue to outpace the supply, just as
it does today.
Housing element law addresses this problem directly by
requiring cities and counties to zone land at appropriate
densities to accommodate the projected housing needs of all
income groups and to remove constraints that prevent such
sites from being developed at the allowed densities.
Cities and counties, however, are not required to build
housing because that is the role of private developers.
The law holds cities and counties accountable only for that
which they control: zoning and land use entitlements.
Without the ability to enforce housing element law, the
market's ability to meet housing demand may well remain
locked up.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/29/10)
California Rural Legal Assistance Foundation (co-source)
Housing California (co-source)
California Association of Realtors
California Coalition for Rural Housing
City of Oakland
Community Housing Improvement Program
Sacramento Housing Alliance
Self-Help Enterprises
Silicon Valley Leadership Group
Transform
OPPOSITION : (Verified 6/29/10)
Civil Justice Association of California
ARGUMENTS IN SUPPORT : According to the author's office,
the appellate court simply erred in barring a housing
element challenge if the deficiency notice is served more
than 90 days after adoption of the element. As indicated
in the 1983 Senate committee and floor analyses for the
AB 602
Page
7
bill that enacted this language, the law's lack of a
deadline for serving such notices was intentional, not an
omission. This bill restores the longstanding ability of
parties to bring an action to enforce housing element law
at all relevant times during the planning period.
ARGUMENTS IN OPPOSITION : Opponents state that
lengthening statutes of limitations generally. They
believe memories fade, witnesses become difficult to
locate, and courts are less likely to be fair. Moreover,
short statutes of limitations encourage the diligent
settling of claims.
JA:nl 7/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****