BILL NUMBER: SB 948 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Alarcon
FEBRUARY 25, 1999
An act to amend Sections 65009, 65589.5, and 65915 of the
Government Code, relating to housing.
LEGISLATIVE COUNSEL'S DIGEST
SB 948, as introduced, Alarcon. Affordable housing developments.
(1) Under existing law, the Planning Zoning Law requires an action
or proceeding against local zoning and planning decisions of a
legislative body to be commenced and the legislative body to be
served within a year after accrual of the cause of action if it meets
certain requirements, including that it is brought in support of the
development of housing that meets the requirements for housing
persons and families with low or moderate incomes. Where the action
or proceeding challenges the adequacy of a housing element, the
action or proceeding may be initiated up to 60 days following the
date the Department of Housing and Community Development reports its
findings concerning the housing element pursuant to specified
provisions.
This bill would revise these provisions to include actions or
proceedings to encourage or facilitate the development of housing and
would include persons and families of very low incomes. The bill
would also provide that any action challenging the adequacy of a
housing element pursuant to these provisions may be brought as
specified above.
(2) Existing law requires local agencies to make specified
findings before disapproving or conditionally approving certain
housing development projects. Existing law also requires local
agencies to provide developer incentives for the production of lower
income housing units within a housing development if the developer
meets specified requirements. Developer incentives include, among
other things, a density bonus, as defined.
This bill would make specified changes in these findings relating
to very low income, low-income, and lower to moderate-income housing
and the housing element of a general plan, respectively. The bill
would revise the definition of "affordable to low- and
moderate-income households" to include very low income households and
would add a definition for "disapprove the project" to these
provisions. The bill would also require the court in any action
brought to enforce these provisions to order a local agency, within
90 days, to approve all applications for development that were denied
on the basis of findings that were inadequate or lacked substantial
evidence and would establish expedited procedures for this purpose.
The bill would also revise the definition of "density bonus" for
purposes of these provisions.
Because these changes would impose new duties on local agencies,
the bill would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to reaffirm the
right of an owner to withdraw residential property from rent or
lease. It is also the intent of the Legislature to reaffirm the
right of a local agency to impose balanced, commensurate conditions
on the subsequent use of residential property once the property has
been withdrawn from rent or lease.
SEC. 2. Section 65009 of the Government Code is amended to read:
65009. (a) (1) 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.
(2) The Legislature further finds and declares that a legal action
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. Legal actions filed to
attack, review, set aside, void, or annul a decision of a city,
county, or city and county pursuant to this division can prevent the
completion of needed developments even though the projects have
received required governmental approvals.
(3) The purpose of this section is to provide certainty for
property owners and local governments regarding decisions made
pursuant to this division.
(b) (1) In an action or proceeding to attack, review, set aside,
void, or annul a finding, determination, or decision of a public
agency made pursuant to this title at a properly noticed public
hearing, the issues raised shall be limited to those raised in the
public hearing or in written correspondence delivered to the public
agency prior to, or at, the public hearing, except where the court
finds either of the following:
(A) The issue could not have been raised at the public hearing by
persons exercising reasonable diligence.
(B) The body conducting the public hearing prevented the issue
from being raised at the public hearing.
(2) If a public agency desires the provisions of this subdivision
to apply to a matter, it shall include in any public notice issued
pursuant to this title a notice substantially stating all of the
following: "If you challenge the (nature of the proposed action) in
court, you may be limited to raising only those issues you or someone
else raised at the public hearing described in this notice, or in
written correspondence delivered to the (public entity conducting the
hearing) at, or prior to, the public hearing."
(3) The application of this subdivision to causes of action
brought pursuant to subdivision (d) applies only to the final action
taken in response to the notice to the city or county clerk. If no
final action is taken, then the issue raised in the cause of action
brought pursuant to subdivision (d) shall be limited to those matters
presented at a properly noticed public hearing or to those matters
specified in the notice given to the city or county clerk pursuant to
subdivision (d), or both.
(c) Except as provided in subdivisions (d) and (i), 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:
(1) To attack, review, set aside, void, or annul the decision of a
legislative body to adopt or amend a general or specific plan. This
paragraph does not apply where an action is brought based upon the
complete absence of a general plan or a mandatory element thereof,
but does apply to an action attacking a general plan or mandatory
element thereof on the basis that it is inadequate.
(2) To attack, review, set aside, void, or annul the decision of a
legislative body to adopt or amend a zoning ordinance.
(3) To determine the reasonableness, legality, or validity of any
decision to adopt or amend any regulation attached to a specific
plan.
(4) To attack, review, set aside, void, or annul the decision of a
legislative body to adopt, amend, or modify a development agreement.
An action or proceeding to attack, review, set aside, void, or
annul the decisions of a legislative body to adopt, amend, or modify
a development agreement shall only extend to the specific portion of
the development agreement that is the subject of the adoption,
amendment, or modification. This paragraph applies to development
agreements, amendments, and modifications adopted on or after January
1, 1996.
(5) To attack, review, set aside, void, or annul any decision on
the matters listed in Sections 65901 and 65903, or to determine the
reasonableness, legality, or validity of any condition attached to a
variance, conditional use permit, or any other permit.
(6) Concerning any of the proceedings, acts, or determinations
taken, done, or made prior to any of the decisions listed in
paragraphs (1), (2), (3), (4), and (5).
(d) An action or proceeding shall be commenced and the legislative
body served within one year after the accrual of the cause of action
as provided in this subdivision, if the action or proceeding meets
both of the following requirements:
(1) It is brought generally in support of or to
encourage or facilitate the development of housing
which meet the requirements for that would increase
the community's supply of housing for
affordable to persons and families with low or moderate incomes
set forth in Section 65915 , as defined in
Section 50079.5 of the Health and Safety Code, or with very low
incomes, as defined in Section 50105 of the Health and Safety Code
.
(2) It is brought with respect to actions taken pursuant to
Article 10.6 (commencing with Section 65580) of Chapter 3 of this
division, pursuant to Section 65589.5, 65863.6, 65915, or 66474.2 or
pursuant to Chapter 4.2 (commencing with Section 65913).
A cause of action brought pursuant to this subdivision shall not
be maintained until 60 days have expired following notice to the city
or county clerk 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. A cause of action brought
pursuant to this subdivision shall accrue 60 days after notice is
filed or the legislative body takes a final action in response to the
notice, whichever occurs first. A notice or cause of action brought
by one party pursuant to this subdivision shall not bar filing of a
notice and initiation of a cause of action by any other party.
(e) Upon the expiration of the time limits provided for in this
section, all persons are barred from any further action or
proceeding.
(f) Notwithstanding Sections 65700 and 65803, or any other
provision of law, this section shall apply to charter cities.
(g) Except as provided in subdivision (d), this section shall not
affect any law prescribing or authorizing a shorter period of
limitation than that specified herein.
(h) Except as provided in paragraph (4) of subdivision (c), this
section shall be applicable to those decisions of the legislative
body of a city, county, or city and county made pursuant to this
division on or after January 1, 1984.
(i) Where In addition to accrual of a
cause of action challenging adequacy of a housing element pursuant to
subdivision (d), where the action or proceeding challenges the
adequacy of a housing element pursuant to subdivision (c)
, the action or proceeding may be initiated up to 60 days following
the date the Department of Housing and Community Development reports
its findings concerning the housing element pursuant to subdivision
(h) of Section 65585.
SEC. 3. Section 65589.5 of the Government Code is amended to read:
65589.5. (a) The Legislature finds all of the following:
(1) The lack of affordable housing is a critical problem which
threatens the economic, environmental, and social quality of life in
California.
(2) California housing has become the most expensive in the
nation. The excessive cost of the state's housing supply is
partially caused by activities and policies of many local governments
which limit the approval of affordable housing, increase the cost of
land for affordable housing, and require that high fees and
exactions be paid by producers of potentially affordable housing.
(3) Among the consequences of those actions are discrimination
against low-income and minority households, lack of housing to
support employment growth, imbalance in jobs and housing, reduced
mobility, urban sprawl, excessive commuting, and air quality
deterioration.
(4) Many local governments do not give adequate attention to the
economic, environmental, and social costs of decisions which result
in disapproval of affordable housing projects, reduction in density
of affordable housing projects, and excessive standards for
affordable housing projects.
(b) It is the policy of the state that a local government not
reject or make infeasible affordable housing developments which
contribute to meeting the housing need determined pursuant to this
article without a thorough analysis of the economic, social, and
environmental effects of the action and without meeting the
provisions of subdivision (d).
(c) The Legislature also recognizes that premature and unnecessary
development of agricultural lands to urban uses continues to have
adverse effects on the availability of those lands for food and fiber
production and on the economy of the state. Furthermore, it is the
policy of the state that development should be guided away from prime
agricultural lands; therefore, in implementing this section, local
jurisdictions should encourage, to the maximum extent practicable, in
filling existing urban areas.
(d) A local agency shall not disapprove a housing development
project affordable to very low, low- and
or moderate-income households or condition
approval in a manner which renders the project infeasible for
development for the use of low- and very low
or moderate-income households unless it finds
makes written findings , based upon substantial
evidence in the record , as to one of the
following:
(1) The jurisdiction has adopted a housing element pursuant to
this article that has been revised in accordance with Section
65588 and that is in substantial compliance with this article,
and the development project is not needed for the jurisdiction to
meet its share of the regional housing need of low-income or
very low income for lower or moderate-income
housing.
(2) The development project as proposed would have a specific,
adverse impact upon the public health or safety, and there is no
feasible method to satisfactorily mitigate or avoid the specific
adverse impact without rendering the development unaffordable to low-
and moderate-income households. As used in this paragraph, a
"specific, adverse impact" means a significant, measurable and
unavoidable impact, as provided in
based on objective written standards , policies, or
conditions .
(3) The denial of the project or imposition of conditions is
required in order to comply with specific state or federal law, and
there is no feasible method to comply without rendering the
development unaffordable to low- and moderate-income households.
(4) Approval of the development project would increase the
concentration of lower income very low income
households in a neighborhood that already has a
disproportionately high number of lower income households
and there is no feasible method of approving the
housing development projects reserved for very low income households
as compared to other predominantly very low income neighborhoods in
the jurisdiction, and the development would be approved
and feasible to develop by the applicant at a different site,
including those sites identified pursuant to paragraph (1) of
subdivision (c) of Section 65583, without rendering the development
unaffordable to low- and moderate-income households.
(5) The development project is proposed on land zoned for
agriculture or resource preservation which is surrounded on at least
two sides by land being used for agricultural or resource
preservation purposes, or which does not have adequate water or waste
water facilities to serve the project.
(6) The development project is inconsistent with the jurisdiction'
s zoning ordinance and general plan land use designation
as specified in any element of the general plan as it existed on the
date the application was deemed complete, and the jurisdiction has
adopted a housing element pursuant to this article.
(e) Nothing in this section shall be construed to relieve the
local agency from complying with the Congestion Management Program
required by Chapter 2.6 (commencing with Section 65088) of Division 1
of Title 7 or the California Coastal Act (Division 20 (commencing
with Section 30000) of the Public Resources Code). Neither shall
anything in this section be construed to relieve the local agency
from making one or more of the findings required pursuant to Section
21081 of the Public Resources Code or otherwise complying with the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code).
(f) Nothing in this section shall be construed to prohibit a local
agency from requiring the development project to comply with written
development standards, conditions, and policies appropriate to, and
consistent with, meeting the quantified objectives relative to the
development of housing, as required in the housing element pursuant
to subdivision (b) of Section 65583. Nor shall anything in this
section be construed to prohibit a local agency from imposing fees
and other exactions otherwise authorized by law which are essential
to provide necessary public services and facilities to the
development project.
(g) This section shall be applicable to charter cities, because
the Legislature finds that the lack of affordable housing is a
critical statewide problem.
(h) The following definitions apply for the purposes of this
section:
(1) "Feasible" means capable of being accomplished in a successful
manner within a reasonable period of time, taking into account
economic, environmental, social, and technological factors.
(2) "Affordable to low- and moderate-income
very low and low-income households" means at least 20
percent of the total units shall be sold or rented to lower income
households, as defined in Section 50079.5 of the Health and Safety
Code , and the remaining units shall be sold or rented to
either lower income households or persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code
. "Affordable to moderate-income households" means
that 100 percent of the units shall be sold or rented to
moderate-income households as defined in Section 50093 of the Health
and Safety Code. Housing units targeted for lower income
households shall be made available at a monthly housing cost that
does not exceed 30 percent of 60 percent of area median income with
adjustments for household size made in accordance with the adjustment
factors on which the lower income eligibility limits are based.
Housing units targeted for persons and families of moderate income
shall be made available at a monthly housing cost that does not
exceed 30 percent of 100 percent of area median income with
adjustments for household size made in accordance with the adjustment
factors on which the moderate income eligibility limits are based.
(3) "Area median income" shall mean area median income as
periodically established by the Department of Housing and Community
Development pursuant to Section 50093 of the Health and Safety Code.
The developer shall provide sufficient legal commitments to ensure
continued availability of units for the lower income households in
accordance with the provisions of this subdivision for 30 years.
(4) "Neighborhood" means a planning area commonly identified as
such in a community's planning documents, and identified as a
neighborhood by the individuals residing and working within the
neighborhood. Documentation demonstrating that the area meets the
definition of neighborhood may include a map prepared for planning
purposes which lists the name and boundaries of the neighborhood.
(5) "Disapprove the project" includes any instance in which a
local agency votes on a proposed housing development application and
the application is not approved, and includes tie votes and instances
in which a local agency continues action on a proposed housing
development application for three successive meetings other than at
the applicant's request.
(i) If any city, county, or city and county denies approval or
imposes restrictions, including a reduction of allowable densities or
the percentage of a lot which may be occupied by a building or
structure under the applicable planning and zoning in force at the
time the application is deemed complete pursuant to Section 65943,
which have a substantial adverse effect on the viability or
affordability of a housing development affordable to low-
and lower or moderate-income households, and the
denial of the development or the imposition of restrictions on the
development is the subject of a court action which challenges the
denial, then the burden of proof shall be on the local legislative
body to show that its decision is consistent with the findings as
described in subdivision (d) and that the findings are supported
by substantial evidence in the record .
(j) When a proposed housing development project complies with the
applicable general plan , zoning, and development policies
land use designation, zoning notwithstanding, in
effect at the time that the housing development project's
application is determined to be complete, but the local agency
proposes to disapprove the project or to approve it upon the
condition that the project be developed at a lower density, the local
agency shall base its decision regarding the proposed housing
development project upon written findings supported by substantial
evidence on the record that both of the following conditions exist:
(1) The housing development project would have a specific, adverse
impact upon the public health or safety unless the project is
disapproved or approved upon the condition that the project be
developed at a lower density. As used in this paragraph, a "specific,
adverse impact" means a significant, measurable and
unavoidable impact, as provided in based on
objective written standards , policies, or conditions
.
(2) There is no feasible method to satisfactorily mitigate or
avoid the adverse impact identified pursuant to paragraph (1), other
than the disapproval of the housing development project or the
approval of the project upon the condition that it be developed at a
lower density.
(k) If in any action brought to enforce the provisions of this
section, a court finds that the local agency denied a project or
conditioned its approval in a manner rendering it infeasible for the
development of lower income or moderate-income households without
making the appropriate findings, or that the findings were inadequate
or lacking substantial evidence, the court shall order the local
agency to approve, within 90 days, all applications that have been
submitted for the proposed development, as described at the time the
application was deemed complete.
(l) In any action, the record of the proceedings before the local
agency shall be filed as expeditiously as possible and,
notwithstanding Section 1094.6 of the Code of Civil Procedure, all or
part of the record may be filed (1) by the petitioner with the
petition or petitioner's points and authorities, (2) by the
respondent with respondent's points and authorities, (3) after
payment of costs by the petitioner, or (4) as otherwise directed by
the court. If the expense of preparing the record has been borne by
the petitioner and the petitioner is the prevailing party, the
expense shall be taxable as costs.
SEC. 4. Section 65915 of the Government Code is amended to read:
65915. (a) When a developer of housing proposes a housing
development within the jurisdiction of the local government, the
city, county, or city and county shall provide the developer
incentives for the production of lower income housing units within
the development if the developer meets the requirements set forth in
subdivisions (b) and (c). The city, county, or city and county shall
adopt an ordinance which shall specify the method of providing
developer incentives.
(b) When a developer of housing agrees or proposes to construct at
least (1) 20 percent of the total units of a housing development for
lower income households, as defined in Section 50079.5 of the Health
and Safety Code, or (2) 10 percent of the total units of a housing
development for very low income households, as defined in Section
50105 of the Health and Safety Code, or (3) 50 percent of the total
dwelling units of a housing development for qualifying residents, as
defined in Section 51.3 of the Civil Code, a city, county, or city
and county shall either (1) grant a density bonus and at least one of
the concessions or incentives identified in subdivision (h) unless
the city, county, or city and county makes a written finding that the
additional concession or incentive is not required in order to
provide for affordable housing costs as defined in Section 50052.5 of
the Health and Safety Code or for rents for the targeted units to be
set as specified in subdivision (c), or (2) provide other incentives
of equivalent financial value based upon the land cost per dwelling
unit.
(c) A developer shall agree to and the city, county, or city and
county shall ensure continued affordability of all lower income
density bonus units for 30 years or a longer period of time if
required by the construction or mortgage financing assistance
program, mortgage insurance program, or rental subsidy program.
Those units targeted for lower income households, as defined in
Section 50079.5 of the Health and Safety Code, shall be affordable at
a rent that does not exceed 30 percent of 60 percent of area median
income. Those units targeted for very low income households, as
defined in Section 50105 of the Health and Safety Code, shall be
affordable at a rent that does not exceed 30 percent of 50 percent of
area median income. If a city, county, or city and county does not
grant at least one additional concession or incentive pursuant to
paragraph (1) of subdivision (b), the developer shall agree to and
the city, county, or city and county shall ensure continued
affordability for 10 years of all lower income housing units
receiving a density bonus.
(d) A developer may submit to a city, county, or city and county a
preliminary proposal for the development of housing pursuant to this
section prior to the submittal of any formal requests for general
plan amendments, zoning amendments, or subdivision map approvals.
The city, county, or city and county shall, within 90 days of receipt
of a written proposal, notify the housing developer in writing of
the procedures under which it will comply with this section. The
city, county, or city and county shall establish procedures for
carrying out this section, which shall include legislative body
approval of the means of compliance with this section. The city,
county, or city and county shall also establish procedures for
waiving or modifying development and zoning standards which would
otherwise inhibit the utilization of the density bonus on specific
sites. These procedures shall include, but not be limited to, such
items as minimum lot size, side yard setbacks, and placement of
public works improvements.
(e) The housing developer shall show that the waiver or
modification is necessary to make the housing units economically
feasible.
(f) For the purposes of this chapter, "density bonus" means a
density increase of at least 25 percent , unless a lesser
percentage is elected by the developer, over the otherwise
maximum allowable residential density under the applicable zoning
ordinance and land use element of the general plan as of the date of
application by the developer to the city, county, or city and county.
Local jurisdictions are authorized and required to grant a
density bonus pursuant to this section without approval of a zoning
change, variance, general plan amendment, use permit, or any local
requirement. The density bonus shall not be included when
determining the number of housing units which is equal to 10 or 20
percent of the total. The density bonus shall apply to housing
developments consisting of five or more dwelling units.
(g) "Housing development," as used in this section, means one or
more groups of projects for residential units constructed in the
planned development of a city, county, or city and county. For
purposes of calculating a density bonus, the residential units do not
have to be based upon individual subdivision maps or parcels. The
density bonus shall be permitted in geographic areas of the housing
development other than the areas where the units for the lower income
households are located.
(h) For purposes of this chapter, concession or incentive means
any of the following:
(1) A reduction in site development standards or a modification of
zoning code requirements or architectural design requirements which
exceed the minimum building standards approved by the California
Building Standards Commission as provided in Part 2.5 (commencing
with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces
that would otherwise be required.
(2) Approval of mixed use zoning in conjunction with the housing
project if commercial, office, industrial, or other land uses will
reduce the cost of the housing development and if the commercial,
office, industrial, or other land uses are compatible with the
housing project and the existing or planned development in the area
where the proposed housing project will be located.
(3) Other
regulatory incentives or concessions proposed by the developer or the
city, county, or city and county which result in identifiable cost
reductions.
This subdivision does not limit or require the provision of direct
financial incentives for the housing development, including the
provision of publicly owned land, by the city, county, or city and
county, or the waiver of fees or dedication requirements.
(i) If a developer agrees to construct both 20 percent of the
total units for lower income households and 10 percent of the total
units for very low income households, the developer is entitled to
only one density bonus and at least one additional concession or
incentive identified in Section 65913.4 under this section although
the city, city and county, or county may, at its discretion, grant
more than one density bonus.
SEC. 5. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.