BILL ANALYSIS �
AB 1220
Page 1
ASSEMBLY THIRD READING
AB 1220 (Alejo)
As Amended April 25, 2011
Majority vote
HOUSING 5-2 LOCAL GOVERNMENT 5-3
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|Ayes:|Torres, Atkins, Bradford, |Ayes:|Alejo, Bradford, Campos, |
| |Cedillo, Hueso | |Davis, Hueso |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jeffries, Miller |Nays:|Smyth, Knight, Norby |
| | | | |
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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 five 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
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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 Government Code Section 66474.2; or, 2) a
developer pursuant to Government Code Sections 65866 and
66498.1.
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)States 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 Government Code Section 65009.
FISCAL EFFECT : None
COMMENTS : Prior to a recent court decision, it housing
advocates 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 a number of other housing-related statutes.
In 2006 Urban Habitat Program brought suit to challenge the City
of Pleasanton's (city) 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 Regional Housing Needs Assessment (RHNA) obligation.
In 2008, the First District California Court of Appeals issued
an unpublished decision in the case of Urban Habitat Program v.
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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.
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
(Waters) 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 (Waters) 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.
This bill modifies the court's in opinion in Urban Habitat
Program v. City of Pleasanton. It 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
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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 (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 a number a 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 suspending the authority of the city or
county to issue building permits, suspending the authority of
the city or county to grant zoning changes and/or variances,
suspending the authority of the city or county to grant
subdivision map approvals, mandating the approval of building
permits for residential housing that meet specified criteria,
mandating the approval of final subdivision maps for housing
projects that meet specified criteria, and mandating 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.
Under current law, the Department of Housing and Community
Development (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.
AB 1220
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Analysis Prepared by : Anya Lawler / H. & C.D. / (916)
319-2085
FN: 0000543