BILL ANALYSIS
AB 602
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 602 (Feuer)
As Amended August 20, 2010
Majority vote
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|ASSEMBLY: | |(May 4, 2009) |SENATE: |27-5 |(August 24, |
| | | | | |2010) |
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(vote not relevant)
Original Committee Reference: B.& P.
SUMMARY : Restores the practical ability to challenge specified
deficiencies in a city's or county's housing element for a
period after the adoption of a housing element if the city or
county fails to address the deficiencies within 60 days.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Require a specified notice to be filed with the local
government within five years after an action to adopt, amend,
or revise a housing element, actions relating to the Least
Cost Zoning Law, annual limits on housing permits, and the
adequacy of a density bonus ordinance.
2)Exclude from the types of challenges that may be brought
during this time period any action related to the Housing
Accountability Act, the Subdivision Map Act, or the
application of a Density Bonus ordinance to a particular
project, all of which are project-specific actions.
3)Require a challenging party to first serve the city or county
with a notice identifying the deficiencies in the housing
element, and allows the city or county 60 days to take correct
the deficiency, following which a dissatisfied party may file
an action in court.
4)Provide 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.
5)Provide that in any action or proceeding brought pursuant to
the foregoing provision no remedy, and no injunction pursuant
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to Section 65754.5, shall abrogate, impair, or otherwise
interfere with the full exercise of the rights and protections
granted to: a) an applicant for a tentative map pursuant to
Section 66474.2; or, b) a developer pursuant to Sections 65866
and 66498.1.
6)Provide 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.
EXISTING LAW , under the Planning and Zoning Law, requires an
action or proceeding against local zoning and planning decisions
of a legislative body to be commenced and the legislative body
to be served within a year of accrual of the cause of action if
it meets certain requirements. Where the action or proceeding
is brought in support of or to encourage or facilitate the
development of housing that would increase the community's
supply of affordable housing, a cause of action accrues 60 days
after notice is filed or the legislative body takes a final
action in response to the notice, whichever occurs first.
(Government Code Section 65009(d).)
AS PASSED BY THE ASSEMBLY , this bill authorized registered
dispensing opticians (RDO) to receive license renewal materials
provided by the Medical Board of California (MBC) at an address
other than the place of business.
FISCAL EFFECT : None
COMMENTS : The author explains that this bill partially restores
the law to its longstanding interpretation prior to a recent
court decision so that residents can hold local governments
accountable to follow the law on planning for housing. Because
these housing plans are in place for 5 to 8 year periods, this
bill allows deficient a plan to be challenged for five years -
that is, most if not all of the period during which the plan
continues to violate the law. This five-year period is
consistent with the time in which local governments have
traditionally been required to defend their planning actions,
and it is less than the 8-year lifespan of housing elements,
which would be the allowable period in the absence of the
surprising recent court case. This reasonable compromise period
provides a fair opportunity for affordable housing advocates to
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bring a case, while giving local governments needed assurance
that their plans cannot be challenged indefinitely.
Supporters argue that AB 602 also creates more certainty for all
home developers by ensuring that any court-ordered remedies will
not affect the rights granted to developers under other
statutes. According to supporters, this bill will facilitate
construction, create jobs, and help ensure a regulatory
environment for housing that encourages the recovery all
Californians so badly need.
The bill's sponsors, Housing California and CRLA Foundation,
state:
AB 602 helps ensure that every city and county does its
part to plan for housing to meet the needs of our
workforce, seniors, and other community members. The bill
fixes the recent decision in Urban Habitat v. City of
Pleasanton, which upended a 25-year old law and reduced the
time to enforce housing planning laws to a mere 90 days
from enactment. While most project-specific land use
decisions are subject to a 90-day statute of limitations,
certain plans relating to affordable homes have long been
subject to an extended period in which a challenge can be
made. Some stakeholders, particularly low-income
residents, are not at the table when the housing element
plan is crafted. Therefore, its deficiencies may only come
to light when the time comes to implement the plan, e.g. an
affordable development is proposed or a shelter looks to
open its doors. The old law - part of legislation
sponsored by the League of CA Cities in 1983 - recognized
this. It allowed citizens to send a deficiency notice to
the local government at any point during the planning
period and then bring suit if the locality did not fix its
housing element. Only 11 suits were brought in 25 years.
AB 602 partially restores this long-standing provision.
California Association of Realtors states that the bill will
help ensure a healthy business environment for the construction
of new housing in California. For 25 years ? housing for low
and moderate income households [has been] treated as a special
case and deserved the exception that was created to recognize
that cities and counties have an ongoing obligation to ensure
that such housing can be built."
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Also in support of the bill, Public Advocates, Inc., adds "AB
602 will provide critical accountability to ensure that no
California city or county is immune from state affordable
housing laws. Those laws, designed to help meet California's
need for new workforce housing, only work if each local
jurisdiction does its part to accommodate its fair share of the
region's housing need at all income levels. The requirements of
the state Housing Element Law are effective in helping to meet
California's critical need for new affordable housing only to
the extent they can be enforced throughout the entire planning
period covered by a housing element. AB 602 ensures that a
mechanism exists to hold cities and counties accountable for
their fair share of this need."
Prior to an unusual recent court decision, it was understood for
over 25 years that a party could challenge the adequacy of a
city's or county's housing element at any time during a planning
period (generally five to eight years) when the action is
brought "in support of or to encourage or facilitate the
development of housing that would increase the community's
supply of [affordable] housing." During this time, affordable
housing advocates have successively, and selectively, used the
law to enforce compliance with affordable housing obligations.
Supporters argue that this long history of success has been
undermined by an aberrant court decision slashing the period to
90 days - one of the shortest periods under any law for bringing
a legal challenge, and one that is not specified in the statute.
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 affordable
housing obligation. In 2008, the appellate court threw out the
challenge, allowing the city to avoid being answering the
allegation on the facts. The court opined:
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
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action or approval. Its claim then accrues 60 days after it
gives this notice.
(Urban Habitat Program v. City of Pleasanton, 116 Cal. App. 4th
1561 (2008).) In other words, instead of being able to initiate
a challenge to a deficient housing element at all relevant times
time during the planning period, housing advocates and other
interested parties may only initiate such a challenge by
submitting a deficiency notice within 90 days of the housing
element's adoption.
The Legislature Rule Has Previously Reiterated That Affordable
Housing Actions Should Be Allowed During The Life of the Housing
Element, Regardless Of The Time Period For Other Types of
Challenges. The statutory language interpreted by the Urban
Habitat court at issue in this bill was added to statute by AB
998 (Waters), Chapter 1138, Statutes of 1983, a bill jointly
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, the Senate Transportation
and Housing Committee reports, 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.
Background Regarding Housing Element Obligations. The Planning
and Zoning Law requires cities and counties to prepare and adopt
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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 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.
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? 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.
Creating Opportunities For The Private Housing 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. 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.
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Ongoing Problems With 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.
Clarification of Remedies . 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
agreements.
The California Building Industry Association (CBIA) comments in
support:
The goal of the state's housing element law is to plan for
and encourage communities to meet their housing needs for
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all types of housing. Challenges to a community's housing
element can often result in a judicially-imposed moratorium
on all housing production in the area (see California
Government Code section 65755). AB 602 will remove some of
the dysfunctional results of the current statutory scheme
that punishes builders by shutting down projects when a
city or county fails to comply with the law. At a time
when California's unemployment levels are unusually high, a
moratorium will not help the job picture. Housing
construction is a prolific job generator. Indeed, three
permanent new jobs are created every time a home is built.
Recovery in the residential market has led the nation out
of recession in nearly every economic recovery of the past
40 years. AB 602, with its protections for development
projects through build out will facilitate construction
jobs.
Court Approval To Be Deemed Compliance For Grant Purposes.
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. At the request of
local government associations, the author reports, 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.
ARGUMENTS IN OPPOSITION: The League of Cities and Association
of Counties argue that the bill allows "any party to sue a city
or county for claims arising out of a number of housing statutes
that could encourage or facilitate loosely-defined affordable
housing goals - a very broad array of potential lawsuits that
does not differentiate between major noncompliance with state
law or a small difference in interpretation. This will leave
cities and counties, businesses and developers unfairly open to
uncertainty and challenges long after decisions have been made."
The local government opponents go on to argue, "The SB 375 deal
provided a number of fast and effective challenge options that
addresses the sponsors concerns. A deal was cut in SB 375 to
provide for new remedies for housing advocates, including a
special remedy to ensure that zoning is done on time with a 60
day resolution, a three-year statute of limitations to target
specific actions that are inconsistent with state law, and a
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process to challenge local agencies if they do not meet
deadlines for implementation contained in their housing
elements. Housing element law has been substantially changed
creating more opportunities for litigation. The law now
provides for an 8-year housing element with a ten-year RHNA,
rigorous proof to identify available sites, and much more
detail. Most jurisdictions have not yet gone through this new
housing element process yet, but given the hundreds of pages
that the newer housing elements are turning out to be, and the
fact that most housing elements cost in the six figures to
complete, the new laws appear to provide an incredible amount of
information, programs and implementation on which to sue that
was not in the law even three years ago. Jeopardizing this
investment years after adoption, in a time of budgetary crisis,
is unfair."
The American Planning Association, California Northern chapter
opposes AB 602, arguing that the bill "would permit those who
have a particular perspective to single out actions (and be
awarded attorney's fees) years after a particular decision has
been made, creating uncertainty precisely at the time when local
governments are doing everything they can to encourage projects
and economic development. AB 602 is also troubling because the
expansion of the housing element law and other laws (such as the
density bonus law) over the past two decades provide a great
deal of legal fodder for litigious plaintiffs and special
interests. In essence, the scope of what can be challenged
under housing element law has greatly expanded. The extremely
broad language in this expansion of housing element law and the
imprecise language with which it was drafted make local agencies
especially vulnerable.
Finally, the current economic downturn must be taken into
account. Put simply, cities are being asked to do more planning
with less staff and other resources. AB 602 ensures that cities
will continue to face legal liability due to this lack of
resources well into the future (through liabilities, costs of
defense in all cases, and attorney's fees in cases lost).
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0006745