BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 602|
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THIRD READING
Bill No: AB 602
Author: Feuer (D), et al
Amended: 8/20/10 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 states the intent of the Legislature
in enacting this bill to modify the courts opinion in Urban
Habitat Program v. City of Pleasanton (2008) 164
Cal.App.4th 1561, with respect to the interpretation of
Section 65009 of the Government Code, and revises and
clarifies statute of limitations and remedies for specified
housing related challenges.
Senate Floor Amendments of 8/20/10 revise the statute of
limitations and remedies for specified housing-related
challenges.
ANALYSIS : The Planning and Zoning Law requires cities
and counties to prepare and adopt a general plan, including
CONTINUED
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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
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
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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.
? 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 Program v. City of
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
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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
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:
1.Removes from the current list of city or county actions
which may be challenged pursuant to Government Code 65009
notice and accrual provisions those actions related to
the Housing Accountability Act, the Subdivision Map Act,
and the application of a Density Bonus ordinance to a
particular project, all of which are project-specific
actions. The bill maintains the ability to use these
notice and accrual provisions to challenge the adequacy
of a city's or county's density bonus ordinance
generally.
2.Extends lengthening the time in which a deficiency notice
may be served to cover all remaining city or county
actions described in this section of law, as opposed to
just housing element challenges. In other words, the
amendments apply the longer timeframe to serve the
deficiency notice to actions relating to the Least Cost
Zoning Law, annual limits on housing permits, and the
adequacy of a density bonus ordinance, in addition to
housing element law.
3.Provides that an entity challenging such an action in
support of affordable housing may serve the deficiency
notice up to five years after the city's or county's
action. 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 an action in court, except that the lawsuit
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may not be filed more than five years after the city's or
county's action. In other words, the entity must file
the lawsuit within one year of the expiration of the
deficiency notice or within five years of the city's or
county's action, whichever occurs first.
4.Provides that a housing element from a prior planning
period may not be challenged if the city or county has
adopted a revised housing element for the new planning
period.
Government Code 65755 . Current law requires a court, if it
finds any portion of a general plan, including a housing
element, out of compliance with the law, to include within
its order or judgment one or more of the following remedies
for any or all types of developments or any or all
geographic segments of the city or county until the city or
county has complied with the law:
? Suspend the authority of the city or county to
issue building permits.
? Suspend the authority of the city or county to
grant zoning changes and/or variances.
? Suspend the authority of the city or county to
grant subdivision map approvals.
? Mandate the approval of building permits for
residential housing that meet specified criteria.
? Mandate the approval of final subdivision maps for
housing projects that meet specified criteria.
? Mandate the approval of tentative subdivision maps
for residential housing projects that meet specified
criteria.
This bill clarifies that in any action or proceeding
brought pursuant to the notice and accrual provisions of
Government Code Section 65009 described above, neither the
court remedies described above nor any injunction against
the development of a housing project shall abrogate,
impair, or otherwise interfere with the full exercise of
the rights and protections granted to an applicant for a
tentative map or a vesting tentative map under specified
provisions of the Subdivision Map Act or to a developer
under a specified provision relating to development
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agreements.
Under current law, HCD operates a number of grant programs
to which cities and counties may apply. In many cases, the
law requires a city or county to have an HCD-approved
housing element in order to be eligible for funding.
This bill provides that if a third-party challenges the
adequacy of a housing element in court and the court finds
that the housing element substantially complies with all of
the requirements of housing element law, the element shall
be deemed to be in compliance for purposes of state housing
grant programs.
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.
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
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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
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.
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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 8/23/10)
California Rural Legal Assistance Foundation (co-source)
Housing California (co-source)
Advocates for Affordable Homes in Fremont
California Association of Realtors
California Building Industry Association
California Coalition for Rural Housing
City of Oakland
Community Housing Improvement Program
Community Housing Works
Eden Housing
Fair Housing of Marin
Grassroots Leadership Network of Marin
Kennedy Commission
Mercy Housing California
Planning and Conservation League
Public Advocates, Inc
Sacramento Housing Alliance
San Diego Housing Federation
Self-Help Enterprises
Sierra Club of California
Silicon Valley Leadership Group
Transform
Urban Habitat
Western Center on Law and Poverty
OPPOSITION : (Verified 8/23/10)
American Planning Association, California Chapter
California State Association of Counties
Civil Justice Association of California
League of California Cities
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JA:nl 8/23/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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