BILL ANALYSIS �
AB 1220
Page 1
Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 1220 (Alejo) - As Amended: April 25, 2011
SUBJECT : Land use and planning: cause of actions: time
limitations
SUMMARY : Revises the statute of limitations and remedies for
specified housing-related challenges. Specifically, this bill :
1)Requires 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)Excludes 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)Requires 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 correct the
deficiency, following which a dissatisfied party may file an
action in court. No court filing can be initiated under this
bill more than 5 years after the underlying action by the
local government.
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.
5)Provides that in any action or proceeding brought pursuant to
the foregoing provision, no remedy, and no injunction pursuant
to Government Code Section 65754.5, shall abrogate, impair, or
otherwise interfere with the full exercise of the rights and
protections granted to (1) an applicant for a tentative map
pursuant to Section 66474.2, or (2) a developer pursuant to
Government Code Sections 65866 and 66498.1.
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6)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.
7)State that it is the intent of the Legislature 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)Under the Planning and Zoning Law, specifies that "except as
provided under subdivision (d)," no action or proceeding shall
be maintained in any of the following cases by any person
unless the action or proceeding is commenced and service is
made on the legislative body within 90 days after the
legislative body's decision:
a) To attack, review, set aside, void, or annul the
decision of a legislative body to adopt or amend a
general or specific plan;
b) To attack, review, set aside, void, or annul the
decision of a legislative body to adopt or amend a zoning
ordinance;
c) To determine the reasonableness, legality, or
validity of any decision to adopt or amend any regulation
attached to a specific plan;
d) To attack, review, set aside, void, or annul the
decision of a legislative body to adopt, amend, or modify
a development agreement;
e) To attack, review, set aside, void, or annul any
decision related to applications for conditional use
permits and variances, or to determine the
reasonableness, legality, or validity of any condition
attached to a variance, conditional use permit, or any
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other permit;
f) Concerning any of the proceedings, acts, or
determinations taken, done, or made prior to any of the
decisions listed above.
�Government Code Section 65009(c)]
2)Specifies that in the case of an action or proceeding
challenging the adoption or revision of a housing element, the
action or proceeding may, in addition, be maintained if it is
commenced and service is made on the legislative body within
60 days following the date that the Department of Housing and
Community Development reports its findings on a jurisdiction's
adopted housing element or adopted amendments to a housing
element �Government Code Section 65009(c)].
3)Under subdivision (d), provides that 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.
�Government Code Section 65009(d)]
4)Specifies that a cause of action brought pursuant to
subdivision (d) shall not be maintained until 60 days have
expired following notice to the city or county specifying the
deficiencies of the general plan, specific plan, or zoning
ordinance, and specifies that a cause of action brought
pursuant to subdivision (d) shall accrue 60 days after notice
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is filed or the legislative body takes a final action in
response to the notice, whichever occurs first �Government
Code Section 65009(d)]
5)Provides that in any action filed on or after January 1, 1991,
to challenge the validity of a housing element, there shall be
a rebuttable presumption of the validity of the element or
amendment if the Department of Housing and Community
Development (HCD) has found that the element substantially
complies with the requirements of the law.
6)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.
(Government Code Section 65009)
FISCAL EFFECT : None
COMMENTS :
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Background
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 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
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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 generally 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 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.
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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.
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. AB 998
specified, for challenges in support of low- and moderate-income
housing requirements, that the petitioner must notice local
government 60 days prior to filing action, and that a one-year
statute of limitations would then begin on the first day that
the legislative body fails to act. The law was silent on when
the 60-day notice had to be served, the prevailing
interpretation of which was that the notice could be served at
any point during the housing element planning period, which at
the time was five years for all jurisdictions.
In the intervening 25 years between the passage of AB 998 and
the Urban Habitat ruling, housing advocates filed and
successfully settled at least eleven 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.
Purpose of the Bill
According to the author, AB 1220 has been introduced to modify
the court's in opinion in Urban Habitat. AB 1220 allows an
entity challenging an action in support of affordable housing to
serve the deficiency notice up to five years after the city's or
county's action. The bill 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 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.
Current law (Government Code Section 65009) 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.
AB 1220 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.
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 1220 provides
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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 Support
According to the sponsors of AB 1220, the California Rural Legal
Assistance and Housing California, "The court's decision in
Urban Habitat misinterpreted the statute of limitations for
challenging an inadequate housing element, and eliminated the
25-year-old 'Affordable Housing Exception' that has ensured
compliance with the law. This erroneous interpretation shortened
the statute of limitations from 5 years to 90 days and makes
effective enforcement of housing element law nearly impossible.
AB 1220 would restore the Affordable Housing Exception while
also making some modest reforms to ensure that the interests of
all stakeholders are balanced. The restoration of the law is
consistent with the Legislature's original intent and corrects
the court's plainly erroneous interpretation of the statute."
Arguments in Opposition
Opponents, including the California Chapter of the American
Planning Association, the League of California Cities, the
Regional Council of Rural Counties, and the California State
Association of Counties, argue that by allowing a five-year
statute of limitations to sue a city or county challenging the
adoption of a housing element, AB 1220 will "encourage a broad
array of expensive lawsuits that do not differentiate between
major noncompliance with state law or a small difference in
interpretation. This will leave local agencies, businesses, and
developers unfairly open to uncertainty long after decisions
have been made."
Previous Legislation:
This bill is identical to AB 602 (Feuer, 2010). That bill was
vetoed by Governor Schwarzenegger with the following veto
message:
"Local governments face numerous potential legal liabilities
when land is developed. One of the protections and assurances
provided to local governments in order to encourage them to move
forward with land development is that there is a reasonable
statute of limitations on when a legal claim can be filed.
Existing law gives interested parties sufficient time to bring
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an action, and extending this period to five years could result
in uncertainty for local governments."
Double-Referred:
This bill was also referred to the Local Government Committee,
where it is scheduled to be heard on May 11, 2011, should it
pass out of this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance Foundation (co-sponsor)
Housing California (co-sponsor)
Bay Area Council
California Association of Realtors
California Coalition for Rural Housing
Century Housing
Community Housing Improvement Program
Congress of California Seniors
Mammoth Lakes Housing, Inc.
Mercy Housing
San Diego Housing Federation
Self-Help Enterprises
Silicon Valley Leadership Group
Southern California Association of Non-Profit Housing
TransForm
Opposition
American Planning Association, California Chapter
California State Association of Counties
Cities of Cypress and Fullerton
City of Mission Viejo
Civil Justice Association of California
League of California Cities
Regional Council of Rural Counties
Santa Clara County
Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085
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