BILL ANALYSIS �
AB 1220
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Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, 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 housing
development approval, 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 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)Provides 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) A completed tentative map application; or,
b) A developer under a vested tentative map or a
development agreement.
5)Provides that if a third party challenges the adequacy of a
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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)States 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.
6)Requires a city or county to make one or more specified
findings in order to disapprove a particular housing
development.
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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
action, or his or her representative, specifying the
deficiencies of the general plan, specific plan, or zoning
ordinance.
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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
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.
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FISCAL EFFECT : Unknown
COMMENTS :
1)According to the author, this bill 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
element's adoption.
2)AB 1220 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
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shall notice the 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 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. The author notes that in none of
these cases was the timeliness on the advocates' suit
contested.
Instead, this bill 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 1220 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. This
bill 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
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tentative map application, or a vested tentative map under the
Subdivision Map Act.
3)According to the sponsors of this bill, the California Rural
Legal Assistance (CRLA) Foundation and Housing California, "AB
1220 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 1220 partially restores this long-standing
provision."
4)Opponents to this bill, the League, the California State
Association of Counties (CSAC), the American Planning
Association (APA), and the Regional Council of Rural Counties
(RCRC) note that in the Urban Habitat decision, the decision
this bill is intended to overturn, the housing advocates were
successful in reaching a settlement that overturned the City's
growth limit. Additionally, the opponents believe the bill's
provisions "do not contain a balanced approach and that under
this bill, a small misstep on the part of the local agency can
shut down development in a jurisdiction until a lawsuit is
completed, even though more targeted remedies are available
that can require a local agency to make a fix without imposing
a full building moratorium until a court makes a final
determination." The opponents write that "these challenges,
costing local agencies millions of dollars to defend, are
brought to require a specific change in a planning document,
not to build housing."
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5)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 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,
this bill 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.
6)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
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housing element every four years to HCD. SB 375 also requires
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 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 1220 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 1220 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 1220 becomes law, thus
setting up a discrepancy among local governments in how AB
1220 would be applied.
7)This bill is substantially similar to AB 602 (Feuer, 2010).
That bill passed both the Assembly Judiciary Committee and the
Assembly Local Government Committee but was ultimately 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 an action, and extending this
period to five years could result in
uncertainty for local governments."
8)Support arguments: Supporters argue 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 existing law requiring local
governments to adopt housing elements that plan for a
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community's share of the regional need for housing.
Supporters argue that 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 this bill 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
litigation. Opponents believe that SB 375 provided a number
of fast and effective challenge options that address the
sponsor's concerns, and therefore, those provisions should be
given time to take effect.
9)This bill was heard by the Housing and Community Development
Committee on April 27, 2011, where it passed with a 5-2 vote.
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
Corporation for Supportive Housing
Mammoth Lakes Housing, Inc.
Mercy Housing
Public Advocates
San Diego Housing Federation
Self-Help Enterprises
Silicon Valley Leadership Group
Southern California Association of Non-Profit Housing
TransForm
Opposition
American Council of Engineering Companies of California
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American Planning Association, California Chapter
California State Association of Counties
Cities of Brea, Cypress, Fullerton, Mission Viejo, Town of Apple
Valley
Civil Justice Association of California
Counties of San Diego and Santa Clara
League of California Cities
Regional Council of Rural Counties
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958