BILL ANALYSIS
AB 602
Page 1
Date of Hearing: August 26, 2010
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 602 (Feuer) - As Amended: August 20, 2010
SUBJECT : Land use and planning: cause of actions: time
limitations.
SUMMARY : Revises the statute of limitations and remedies for
specified housing-related challenges.
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 housing
development approval, 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 legislative
body of the city, county, or city and county with a notice
identifying the deficiencies in the housing element, and
allows the city or county 60 days to correct the deficiency,
following which a dissatisfied party may file an action in
court.
4)Provide that in any action or proceeding brought to challenge
the items listed in #1 no remedy, and no injunction pursuant
to those prescribed by a court during a challenge regarding
the validity of a general plan, shall abrogate, impair, or
otherwise interfere with the full exercise of the rights and
protections granted to:
a) An completed tentative map application; or,
b) A developer under a vested tentative map or a
development agreement.
AB 602
Page 2
5)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.
6)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.
7)State that it is the intent of the Legislature in enacting
Section 2 of the bill to modify the court's 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.
EXISTING LAW :
1)Requires each city, county, or city and county to prepare and
adopt a general plan for its jurisdiction that contains
certain mandatory elements, including a housing element.
2)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.
3)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.
4)Requires, when determining whether to approve a tentative
subdivision map, a city or county shall apply to only those
ordinances, policies, and standards in effect as of the date
the developer's application is deemed complete.
5)Requires cities and counties, when adopting an ordinance which
limits the number of housing units that 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.
AB 602
Page 3
6)Requires a city or county to make one or more specified
findings in order to disapprove a particular housing
development.
7)States that the Legislature finds and declares that there
currently is a housing crisis in California and it is
essential to reduce delays and restraints upon expeditiously
completing housing projects, and declares that a legal action
or proceeding challenging a decision of a city, county, or
city and county has a chilling effect on the confidence with
which property owners and local governments can proceed with
projects.
8)Finds and declares that legal actions or proceedings filed to
attack, review, set aside, void, or annul a decision of,
including but not limited to, the implementation of general
plan goals and policies that provide incentives for affordable
housing, open-space and recreational opportunities, and other
related public benefits, can prevent the completion of needed
developments even though the projects have received required
governmental approvals.
9)States that the purpose of Section 65009 of the Government
Code is to provide certainty for property owners and local
governments regarding decisions made pursuant to Planning and
Zoning laws.
10)Provides than an action or proceeding shall be commenced and
the legislative body served within one year after the accrual
of the cause of action, if the action or proceeding meets both
of the following requirements:
a) It is brought in support of or to encourage or
facilitate the development of housing that would increase
the community's supply of housing affordable to persons and
families with low or moderate incomes; and,
b) It is brought with respect to actions taken on the
Housing Element, Housing Accountability Act, Subdivision
Map Act, Density Bonus, or housing development approval.
11)Provides that a cause of action shall not be maintained until
60 days have expired following notice to the city or clerk of
the board of supervisors by the party bringing the cause of
AB 602
Page 4
action, or his or her representative, specifying the
deficiencies of the general plan, specific plan, or zoning
ordinance.
12)Provides that a cause of action shall accrue 60 days after
notice is filed or the legislative body takes a final action
in response to the notice, whichever occurs first.
13)Provides that in any action filed on or after January 1,
1991, taken to challenge the validity of a housing element,
there shall be a rebuttable presumption of the validity of the
element or amendment if, after the Department of Housing and
Community Development (HCD) reviews the housing element and
finds the element or amendment substantially complies with the
requirements of this article.
14)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, including;
a) Suspension of the city or county's authority to issue
building permits;
b) Suspension of the city or county's authority to grant
zoning changes and/or variances;
c) Suspension of the city or county's authority to grant
subdivision map approvals;
d) Mandating the approval of building permits for
residential housing that meet specified criteria;
e) Mandating the approval of final subdivision maps for
housing projects that meet specified criteria; and,
f) Mandating the approval of tentative subdivision maps for
residential housing projects that meet specified criteria.
15)Requires that rezoning of sites needed to meet Regional
Housing Needs Assessment (RHNA) requirements, including
adoption of minimum density and development standards, shall
AB 602
Page 5
be completed no later than three years after either the date
the housing element is adopted or the date that is 90 days
after receipt of comments from HCD, whichever is earlier,
unless this deadline is extended, as specified.
AS PASSED BY THE ASSEMBLY , this bill authorized dispensing
opticians to register biennially with the Medical
Board of California.
FISCAL EFFECT : May increase costs to local governments, to the
extent that this bill creates a greater opportunity for
challenges to local governments' general plans.
COMMENTS :
1)According to the author, AB 602 has been introduced to modify
the court's opinion in Urban Habitat Program v. City of
Pleasanton, 116 Cal. App. 4th 1561 (2008), and to revise and
clarify statute of limitations and remedies for specified
housing-related challenges. 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 and 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
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, housing advocates and other
interested parties may only initiate such a challenge by
submitting a deficiency notice within 90 days of the housing
AB 602
Page 6
element's adoption.
2)AB 602 revises the statute of limitations and certain remedies
for specified housing-related challenges. AB 998 (Waters),
Chapter 1138, Statutes of 1983, put in place 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, a measure which was
sponsored by the League of California Cities (League) and the
California Building Industry Association (CBIA). AB 998
specified, for challenges in support of low- and
moderate-income housing requirements, that the petitioner
shall notice local government 60 days prior to filing action,
and that the [one-year] statute of limitations would then
begin on the first day that the legislative body fails to act.
Since that time, and prior to the Urban Habitat ruling in
2008, housing advocates have 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. The author notes that in none of these cases
was the timeliness on the advocates' suit contested.
Instead, AB 602 allows an entity challenging such an action in
support of affordable housing to serve the deficiency notice
up to five years after the city's or county's action. AB 602
provides, 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 may not be filed more
than five years after the city's or county's action.
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
development or any or all geographic segments of the city or
county until the city or county has complied with the law,
including suspension of a city or county's authority to issue
building permits, grant zoning changes or variances, or grant
subdivision map approvals, or mandating the approval of
building permits for residential housing, mandating the
approval of final subdivision maps for housing projects, or
mandating the approval of tentative subdivision maps for
residential housing project, under specified criteria. AB 602
AB 602
Page 7
clarifies that in an action or proceeding brought pursuant to
the notice and accrual provisions relating to housing
development approval, annual limits on housing permits, and
the adequacy of a density bonus ordinance, that neither the
court remedies 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 a completed tentative map application, or a vested
tentative map under the Subdivision Map Act.
3)According to the sponsors of AB 602, the California Rural
Legal Assistance (CRLA) Foundation and Housing California, "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 California 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."
4)However, opponents state that the sponsors of the bill are
misinterpreting the statutes that are being amended by AB 602.
Specifically, the League, the California State Association of
Counties (CSAC), the American Planning Association (APA), and
the Regional Council of Rural Counties (RCRC) offer the
following answer to the sponsors claim that the statutes prior
to Urban Habitat allowed for an "unlimited" statute of
limitations and that their amendments restore the language as
the Legislature intended:
AB 602
Page 8
"It is inconsistent with the plain language of the statute.
Section 65009(c) of the Government Code starts with the words
'Except as provided in subdivision (d).' This means that
subdivision (c) will state the general rule and subdivision
(d) will state an exception to the general rule. The two
subdivisions should be read together, as a unit:
General rule (subdivision c): There is a 90-day statute of
limitation to challenge most land use decisions, the
decision to adopt or amend a general or specific plan, to
challenge
a zoning ordinance, to determine reasonableness of a
regulation attached to a specific plan; to challenge a
development agreement, and to challenge a conditional use
permit or variance.
The exception to the general rule: There is a one-year
statute of limitations to challenge certain specific land
use decisions if the challenge is brought in support of the
development of affordable housing, and it is brought with
respect to actions taken pursuant to housing element law,
the density bonus law, "no-net loss" zoning, the Housing
Accountability Act, and growth control ordinances. The
one-year statute of limitations begins 60 days after notice
is given specifying the deficiencies in the general plan,
specific plan, or zoning ordinance.
Therefore, the exception to the general rule adds 60 days and
one year to the 90-day period found in the general rule. If
subdivision (d) were not intended to be read in the context of
subdivision (c), then the introductory clause would not have
been necessary. Subdivision (d) could have provided for an
"unlimited" statute of limitations without any reference to
subdivision (c)."
5)There appears to be several interpretations of the statute of
limitations language contained in AB 602, and these
interpretations conflict. It is unclear whether the language
requires a five- year or six-year statute of limitations
because the five-year cap language is contained in one section
of the bill, and in the next section the language provides for
notice in five years that would trigger an additional year to
sue. The Committee may wish to ask the author to clarify the
intent of the bill's language with respect to this issue. The
Committee may also wish to ask the author to explain why a
AB 602
Page 9
five-year statute of limitations was chosen.
6)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. AB 602 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. Additionally,
AB 602 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.
7)SB 375 (Steinberg), Chapter 728, Statutes of 2008, links
together housing policy, land use and transportation planning,
and environmental review with climate policy, with the intent
of reducing greenhouse gas emissions through the development of
a sustainable communities strategy (SCS), thus setting up a
process to help achieve the goals of the Global Warming
Solutions Act of 2006 [AB 32 (Nu?ez), Chapter 488, Statutes of
2006]. Prior to SB 375, local governments were required to
revise their housing elements every five years. The Regional
Housing Needs Assessment (RHNA) process was also on a
five-year schedule. However, most metropolitan planning
organizations (MPOs) adopt a regional transportation plan
(RTP) every four years pursuant to federal law, meaning that
the planning for housing and transportation rarely occurs at
the same. SB 375 aligned these processes by creating an
eight-year housing element cycle, meaning that one RHNA
planning period will equal two RTP planning periods.
The alignment provisions contained in SB 375 take effect for
the fifth revision of the housing element for local
governments. Under the provisions of SB 375, once the local
government receives its RHNA allocation (and adopts an RTP at
the same time), it then has 18 months to prepare its housing
element and submit it to HCD - beginning with the first RTP to
be adopted after September 30, 2010. Those local governments
that fail to submit a housing element to HCD within the
18-month timeline would fall out of the eight-year housing
element cycle and will then be required to submit their
housing element every four years to HCD. SB 375 also requires
AB 602
Page 10
local governments 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 process to challenge local agencies if they do not meet
deadlines for implementation contained in their housing
elements.
SB 375 is still in the very beginning stages of
implementation. Since SB 375 involves major changes to land
use planning and zoning for local governments, the Committee
may wish to consider how AB 602 interacts with the
implementation of SB 375.
Additionally, since many counties in the state are rural and
will still operate under a five-year housing element period,
AB 602 would allow those counties to be continuously under
legal threat on their housing elements throughout their entire
planning period. Those jurisdictions that, under the
provisions of SB 375, opt to have their housing elements due
every eight years, however, will have several years in which
challenges may not be brought, if AB 602 becomes law, thus
setting up a discrepancy among local governments in how AB 602
would be applied.
8)CBIA has removed their opposition and is in support of the
most recent version of AB 602. CBIA notes that the most
recent amendments provide protections to development projects
from a court-imposed moratorium once a project achieves a
certain point in the entitlement process. CBIA states that
"when an applicant for a tentative map has a complete
application, the rules to which the map application is subject
are frozen based upon due process and fairness concern. It is
at this point that the applicant or developer commences
detailed and complex planning efforts and commits significant
resources to carrying out the project?.this legislation
establishes a safe harbor which protects tentative maps and
development agreements from any subsequently imposed
moratorium such as the suspension of issuance of building
permits and other related permits, variances, zone changes,
and categories of subdivision map approvals." CBIA notes that
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.
AB 602
Page 11
9)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 been 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)."
10)Support Arguments : AB 602 partially restores the law to its
longstanding interpretation prior to a recent court decision
so that residents can hold local governments accountable to
follow existing law requiring local governments to adopt
housing elements that plan for a community's share of the
regional need for housing. Because these housing plans are in
place for five- to eight-year periods, this bill allows
deficient plans to be challenged for five years - that is, for
the majority of jurisdictions, most but not all of the period
during which the plan continues to allegedly violate the law.
This reasonable compromise provides a fair opportunity for
low-income persons and affordable housing advocates to bring a
case, while giving local governments needed assurance that
their plans cannot be challenged indefinitely.
Opposition Arguments : Opponents argue that AB 602 creates
uncertainty for development approvals at a time when the state
is attempting to crawl out of an economic recession.
Additionally, housing element law has been substantially
changed in the last few years to provide more opportunity for
AB 602
Page 12
litigation. Opponents believe that SB 375 provided a number
of fast and effective challenge options that address the
sponsors concerns, and therefore, should be given time to take
effect.
11)This bill was heard by the Judiciary Committee on August 25,
2010, where it passed with a 6-1 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance Foundation [CO-SPONSOR]
Housing California [CO-SPONSOR]
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
AB 602
Page 13
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
American Planning Association, California Chapter
California State Association of Counties
Cities of Costa Mesa, Diamond Bar, Encinitas, Lakewood,
Livingston, Merced, Mission Viejo,
Modesto, Riverbank, Stockton, Tracy, Walnut Creek, and
Whittier
Civil Justice Association of California
County of San Diego
League of California Cities
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958