BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1220|
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THIRD READING
Bill No: AB 1220
Author: Alejo (D), et al.
Amended: 4/25/11 in Assembly
Vote: 21
SENATE TRANSPORTATION & HOUSING COMMITTEE : 5-3, 6/14/11
AYES: DeSaulnier, Kehoe, Lowenthal, Pavley, Simitian
NOES: Gaines, Harman, Huff
NO VOTE RECORDED: Rubio
ASSEMBLY FLOOR : 47-26, 5/12/11 - See last page for vote
SUBJECT : Statute of limitations and remedies for
specified housing-related challenges
SOURCE : California Rural Legal Assistance Foundation
Housing California
DIGEST : This bill allows an entity in support of
affordable housing to challenge a housing element or a
specified city or county housing ordinance within five
years of adoption.
ANALYSIS : 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 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
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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 receives 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. Many of HCD's grant programs require a city
or county to have an HCD-approved housing element in order
to be eligible for funding.
The Planning and Zoning Law and the Subdivision Map Act
also include a number of sections governing zoning and
entitlements specifically related to housing, including:
1. 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.
2. A provision requiring 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.
3. 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.
4. 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
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contribute to producing housing at the lowest possible
cost.
5. 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 understood that
current law (Government Code �GOV] Section 65009) 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 is known as the
"notice and accrual provision" and 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 v. 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 concluded that, while
the statute does not specify the time within which a party
must deliver the deficiency notice to the city or county,
it must interpret the statute as containing a time limit.
The court then set the deadline for serving a notice at 90
days after the legislative action to adopt the housing
element or ordinance at issue.
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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.
Current law also 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:
1. Suspend the authority of the city or county to issue
building permits.
2. Suspend the authority of the city or county to grant
zoning changes and/or variances.
3. Suspend the authority of the city or county to grant
subdivision map approvals.
4. Mandate the approval of building permits for residential
housing that meet specified criteria.
5. Mandate the approval of final subdivision maps for
housing projects that meet specified criteria.
6. Mandate the approval of tentative subdivision maps for
residential housing projects that meet specified
criteria.
This bill states the intent of the Legislature to modify
the portion of the Urban Habitat opinion relating to the
statute of limitations for using the GOV Section 65009
notice and accrual provision, limits the applicability of
the notice and accrual provision, and provides a five-year
time frame for parties to initiate an action "in support of
or to encourage or facilitate the development of housing
that would increase the community's supply of �affordable]
housing." Specifically, this bill:
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1. States the intent of the Legislature to modify the
court's opinion in Urban Habitat Program v. City of
Pleasanton with respect to the interpretation of Section
65009 of the GOV.
2. Removes from the current list of city or county actions
that a party may challenge pursuant to the GOV Section
65009 notice and accrual provision those actions related
to the Housing Accountability Act, the Subdivision Map
Act, and the application of a Density Bonus ordinance to
a particular project, all of which are project-specific
actions. This bill maintains the ability to use the
notice and accrual provision to challenge the adequacy
of a city's or county's density bonus ordinance
generally.
3. Provides that an entity bringing a challenge in support
of affordable housing against a city or county action
relating to housing element law, the Least Cost Zoning
Law, annual limits on housing permits, or the adequacy
of a density bonus ordinance may serve a deficiency
notice up to five years after the city's or county's
action. 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 suit
may not be filed more than five years after the city's
or county's action. In other words, the entity must
file the suit within one year of the expiration of the
deficiency notice or within five years of the city's or
county's action, whichever occurs first.
4. Clarifies that in any action brought pursuant to the
notice and accrual provisions of GOV Section 65009,
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.
5. Provides that if a third-party challenges the adequacy
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of a housing element 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.
Comments
Current level of housing element compliance . According to
HCD's 2010 annual housing element report to the
Legislature, as of December 31, 2010, only 52 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.
The importance of being able to challenge on-going
policies . Creating certainty by maintaining a short time
frame for legal challenges is important for individual
development projects. Housing elements, zoning ordinances,
growth control ordinances, and density bonus ordinances, on
the other hand, are living documents meant to guide cities'
and counties' current and future land use decisions. When
a housing element or such an ordinance fails to comply with
state law, it is important that it be correctable whenever
the deficiencies are identified. In recognition of the
difference between specific project-related decisions and
general policies guiding future development, this bill
deletes the ability of affordable housing advocates to use
the GOV Section 65009 notice and accrual provision to
challenge a project specific decision under the Housing
Accountability Act, the Subdivision Map Act, or a density
bonus ordinance while maintaining the notice and accrual
provision for challenging on-going policies.
There are also logistical reasons for an on-going
enforcement period for housing elements. The state
generally does not enforce housing element or other
affordable housing laws directly. Enforcement relies on
local governments' voluntary compliance with the
possibility of citizen enforcement actions, most often by
affordable housing advocacy groups. There are not many of
these nonprofit organizations in the state, and their
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resources are spread very thin. They simply do not have
the ability to monitor the adoption of all the state's
housing elements in real time and immediately file
deficiency notices. Moreover, most of these groups are
local and faced with the fact that all jurisdictions within
a region adopt their housing elements around the same time.
The area covered by the Southern California Association of
Governments, for instance, includes 200 jurisdictions. As
long as housing element and other affordable housing laws
rely on citizen actions for enforcement and the resources
of nonprofit citizen groups are limited, effective
enforcement requires allowing a meaningful opportunity to
raise alleged violations more than 90 days after adoption.
A brief history of the statute . 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. 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, 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
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statute in this regard.
Unlocking the private 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' (SANDAG's) 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.
Previous Legislation
Last year, the Legislature approved a bill, AB 602 (Feuer),
Session of 2009-10, that was identical to this bill.
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Governor Schwarzenegger vetoed AB 602,
stating:
"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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/11)
California Rural Legal Assistance Foundation (source)
Housing California (source)
The Arc of California
Bay Area Council
California Association of Realtors
California Coalition for Rural Housing
Century Housing Corporation
Community Housing Improvement Program
Congress of California Seniors
Corporation for Supportive Housing
Desert Manna
Los Angeles Homeless Services Authority
Mammoth Lakes Housing Inc.
Mercy Housing
Natural Resources Defense Council
Planning and Conservation League
Public Advocates
San Diego Housing Federation
Self-Help Enterprises
Silicon Valley Leadership Group
Sonoma County Task Force for the Homeless
Southern California Association of Non-Profit Housing
Transform
United Cerebral Palsy
Urban Habitat
Western Center on Law and Poverty
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OPPOSITION : (Verified 6/15/11)
Affordable Housing Advocates
American Council of Engineering Companies of California
American Planning Association, California Chapter
Association of California Cities - Orange County
California State Association of Counties
Cities of Brea, Carlsbad, Cerritos, Cypress, Eastvale,
Fullerton, Mission Viejo, Red Bluff, and Whittier
Civil Justice Association of California
Counties of Marin, Orange, San Diego, Santa Clara, and
Tulare
Fresno Mayor Ashley Swearengin
League of California Cities
Los Angeles Division of the League of California Cities
Regional Council of Rural Counties
Town of Apple Valley
ARGUMENTS IN SUPPORT : According to the author, this bill
corrects a flawed court ruling that held that citizens may
only challenge the adequacy of a city's or county's housing
element for 90 days from the date of adoption. Combined
with the recent change to an eight-year housing element
cycle, the ruling holds the potential for more than seven
years of bad land-use decisions with little recourse for
citizen action.
ARGUMENTS IN OPPOSITION : Local government opponents
believe a five-year statute of limitation is too long and
that this bill will encourage a broad array of expensive
lawsuits that do not differentiate between major
non-compliance with state law or a small difference in
interpretation. They believe that this additional legal
exposure is especially unwarranted at a time when they are
facing significant fiscal pressures. They argue, moreover,
that the challenges allowed by this bill do not mandate
approval of actual housing projects but only require a
change in a planning document.
The Civil Justice Association opposes lengthening statutes
of limitations generally. They believe memories fade,
witnesses become difficult to locate, and courts are less
likely to be fair. Moreover, short statutes of limitations
encourage the diligent settling of claims.
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ASSEMBLY FLOOR : 47-26, 5/12/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gordon, Hall, Hayashi, Roger Hern�ndez, Hill, Huber,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Pan, Perea, V. Manuel P�rez, Skinner,
Solorio, Swanson, Wieckowski, Williams, Yamada, John A.
P�rez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Gatto, Grove, Hagman, Halderman,
Harkey, Jeffries, Jones, Knight, Logue, Mansoor, Miller,
Morrell, Nestande, Nielsen, Norby, Olsen, Silva, Smyth,
Wagner
NO VOTE RECORDED: Cedillo, Chesbro, Garrick, Gorell,
Portantino, Torres, Valadao
JJA:kc 6/16/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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