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AB-989 Housing Accountability Act: appeals: Housing Accountability Committee.(2021-2022)

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Date Published: 05/03/2021 09:00 PM
AB989:v97#DOCUMENT

Amended  IN  Assembly  May 03, 2021
Amended  IN  Assembly  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 989


Introduced by Assembly Member Gabriel
(Principal coauthor: Senator Gonzalez)
(Coauthors: Assembly Members Berman, Fong, Mayes, McCarty, Quirk-Silva, Robert Rivas, and Wicks)
(Coauthor: Senator Kamlager)

February 18, 2021


An act to add Section 65585.4 65589.5.1 to the Government Code, relating to planning and land use. housing.


LEGISLATIVE COUNSEL'S DIGEST


AB 989, as amended, Gabriel. Housing: local development decisions: appeals. Housing Accountability Act: appeals: Housing Accountability Committee.
Existing law requires a city or county to prepare and adopt a general plan for its jurisdiction that contains certain mandatory elements, including a housing element. Existing law prescribes requirements for the housing element, including adequate sites for various types of housing based on the existing and projected need of all economic segments of the community. Existing law requires a city or county to consider guidelines adopted by the Department of Housing and Community Development in preparing its housing element and prescribes a process for submitting the element for review by the department. Existing law authorizes the department to take certain actions if it determines that the housing element does not comply with prescribed requirements.
The Housing Accountability Act prohibits a local agency from disapproving, or conditioning approval in a manner that renders infeasible, specified housing development projects, including projects for very low, low-, or moderate-income households and projects for emergency shelters that comply with applicable, objective general plan, zoning, and subdivision standards and criteria in effect at the time the application for the project is deemed complete, unless the local agency makes specified written findings based on a preponderance of the evidence in the record.
This bill would establish a Housing Accountability Committee within the Department of Housing and Community Development, Committee, and would prescribe its membership. The bill would set forth the committee’s powers and duties, including the review of appeals regarding multifamily housing projects that cities and counties have denied or subjected to unreasonable conditions that make the project financially infeasible.
This bill would require that the committee be supported by the department and hear appeals at least quarterly or more often as the committee deems necessary. authorize an applicant who proposes a housing development project pursuant to the Housing Accountability Act, as described above, to appeal a local agency’s decision on the project application to the committee. The bill would prescribe the qualifications of proposed housing developments that would be eligible for appeals and timelines within which applicants, the committee, and local agencies would be required to act. The bill would require, among other things, the local agency to transmit a copy of its decision and reasoning to the committee, as specified, and would require all governing members of the local agency to certify in writing, under penalty of perjury, that their decision was not made for any unlawful or improper purpose. By requiring members of the local agency to make certifications under penalty of perjury, this bill would impose a state-mandated local program. committee.
This bill would require the committee to vacate a local decision if it finds that the local agency disapproved the housing development or conditioned the approval of the housing development in violation of specified provisions, and the Housing Accountability Act. The bill would require the committee to direct order the local agency to issue any necessary approval or permit for the development and, if applicable, to modify or remove any condition or requirement to make the development no longer infeasible. conditions or requirements that violate the act.
This bill would require a local agency to carry out a committee order within 30 days of entry, and if the local agency fails to do so, the bill would authorize an applicant to enforce the committee orders in court. The bill would entitle the applicant to attorney’s fees and costs, and would additionally authorize the court to impose specified fines on the city or county. local agency. The bill would authorize the department to charge applicants a fee for an appeal, as specified, and if the committee orders approval of the proposed development or modifies or removes any conditions or requirements imposed upon the applicant, the bill would require a city or county local agency to reimburse the applicant for the fee. By increasing the duties of local officials, this bill would impose a state-mandated local program.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

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.

This bill would provide that no reimbursement is required by this act for specified reasons.

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.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature hereby finds and declares the following:
(a) California is experiencing a housing crisis, with housing demand far outstripping supply. California recently ranked 49th out of the 50 states in housing units per capita.
(b) Studies have shown that the housing crisis is driving high costs of living and further threatening sustainable economic growth in the state.
(c) Research has also shown that cost-burdened households have had to cut back on critical basic needs like food, and can be forced to take on additional debt in order to afford rent. Extremely low income households in California have to pay at least one-half of their income toward housing, putting them at risk of housing instability and homelessness.
(d) According to the California Housing Partnership, California needs an estimated 2,600,000 additional homes over the next 10 years, including 1,200,000 homes affordable to lower income households.
(e) State law requires local governments to exercise their zoning power to meet the housing needs of residents at all income levels and to remove arbitrary constraints that prevent the development of sufficient affordable housing.
(f) Even when proposed housing projects conform to local zoning requirements, local officials may improperly deny projects or subject them to unreasonable conditions that make them financially infeasible.
(g) It is often prohibitively expensive, time-consuming, and impractical to bring litigation challenging improper and unlawful decisions preventing the construction of affordable housing. For this reason, State Legislatures in Connecticut, Illinois, Massachusetts, and Rhode Island have created alternative means to challenge efforts to prevent the construction of affordable housing.
(h) It is the intent of the Legislature to ensure that local governments do not actively defy or circumvent state law and improperly or unlawfully prevent the development of badly needed affordable housing.
SEC. 2.Section 65585.4 is added to the Government Code, to read:
65585.4.

SEC. 2.

 Section 65589.5.1 is added to the Government Code, to read:

65589.5.1.
 (a) There shall be within the department a is hereby established the Housing Accountability Committee consisting of five eight members to review multifamily housing development projects identified in subdivision (d) of Section 65589.5 that have been denied or subjected to unreasonable conditions that make the project financially infeasible. conditions in violation of Section 65589.5.
(1) The director of the department and the Director of the Governor’s Office of Planning and Research shall be ex officio members, members of the committee, provided that they may designate an employee of their respective department or office to serve on the committee in their place.
(2) The remaining three six members of the committee shall be appointed by the Governor with the advice and consent of the Senate. One member Senate as follows:
(A) Notwithstanding Section 1099, two members shall be a member of a city council or board of supervisors and one other member supervisors. One member shall represent a small jurisdiction and one member shall represent a large jurisdiction.
(B) Two members shall have extensive experience in the development of affordable housing. The
(C) Two members shall be neither a member of a city council or county board of supervisors nor have extensive experience in the development of affordable housing.
(3) The appointed members shall serve for terms of two years each, at the pleasure of the Governor. The
(4) The director of the department shall designate the chairperson.

(3)

(5) Members of the committee shall not receive compensation for their services, but shall be reimbursed by the department for all reasonable expenses actually or necessarily incurred in the performance of their official duties. The department shall provide the space and clerical and other assistance that the committee may require.

(4) The committee shall hear appeals pursuant to this section at least quarterly or more often as it deems necessary. The committee shall conduct the hearings in accordance with guidelines established by the department. The adoption, amendment, or repeal of a guideline authorized by this section is hereby exempted from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2).

(b)An applicant who proposes to construct a housing development that meets the criteria of subdivision (c) and whose application is either denied, or approved with conditions that in the person’s judgment render the provision of housing economically infeasible, may appeal the decision of the city, county, or city and county to the committee.

(c)An applicant may file an appeal with the committee if both of the following criteria are met:

(1)The proposed housing development will meet or exceed any of the following affordability requirements:

(A)Ten percent of the total of the housing development is available at affordable housing cost to extremely low income households whose household income is less than or equal to 30 percent of the area median income.

(B)Twenty percent of the total housing of the development is available at affordable housing cost to very low income and low-income households, as defined in Section 50105 of the Health and Safety Code.

(C)One hundred percent of the total housing of the development is available at affordable housing cost to moderate-income households, as defined in Section 50093 of the Health and Safety Code.

(2)Either of the following criteria is met:

(A)The city, county, or city and county has adopted a housing element that the department has determined pursuant to Section 65585 to be in substantial compliance with the requirements of this article, and the proposed housing development, exclusive of any density bonus granted pursuant to Section 65915, is consistent with both the density allowed by the jurisdiction’s zoning ordinance and the general plan land use designation as specified in any element of the general plan as of the date the application was deemed complete, except that consistency shall not be required with the zoning ordinance or the general plan land use designation if the jurisdiction has not amended the ordinance or the designation to conform to the adopted housing element.

(B)The city, county, or city and county has not adopted a housing element that the department has determined pursuant to Section 65585 to be in substantial compliance with the requirements of this article, and the proposed housing development is located on a site that is designated for residential or commercial uses in any element of the general plan as of the date the application was deemed complete.

(d)(1)An applicant may file an appeal with the committee within 45 days after the date of the decision by the local agency to deny the application or approve the application with conditions that render the provision of housing economically infeasible. The committee shall notify the local agency of the filing of an appeal within 10 days, and the local agency shall, within 10 days of the receipt of that notice, transmit a copy of its decision and the reasons therefor to the committee. All governing members of the local agency shall certify in writing, under penalty of perjury, that their decision was not made for any unlawful or improper purpose. If the local agency does not meet the deadline, the committee shall vacate the decision of the local agency and direct the local agency to issue any necessary approval or permit for the development to the applicant within 30 days of the committee’s decision. In this instance, the case shall be considered closed. If the local agency responds within the deadline, the appeal shall be heard within 30 days after receipt of the request for an appeal by the applicant.

(2)The appeal hearing may be conducted by the committee, a subcommittee of two or more members of the committee, or a hearing officer appointed by the chairperson of the committee. A record of the proceedings shall be kept. The hearing shall be limited to the issue of whether the local agency, in violation of Section 65589.5, disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of housing for very low, low-, or moderate-income households, including farmworker housing, without making the findings required by that section or without making findings supported by a preponderance of the evidence.

(6) Any appeal hearing held pursuant to this section shall be conducted by a panel of five members of the committee. Each five-member panel shall include the two ex officio members or their designee and one member appointed pursuant to each of subparagraphs (A), (B), and (C) of paragraph (2). With the exception of the ex officio members, each panel member shall be randomly assigned to an appeal hearing from within the groupings of subparagraphs (A), (B), and (C) of paragraph (2), except in circumstances where a panelist has a conflict of interest or a scheduling conflict.
(7) Except as specifically provided in this section, the panel shall consider appeals pursuant to the administrative adjudication provisions of the Administrative Procedure Act (Chapter 4.5 (commencing with Section 11400) and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2).
(8) The department may adopt regulations to implement this section. The initial adoption of a regulation authorized by this section is deemed to address an emergency, for purposes of Sections 11346.1 and 11349.6, and the department is hereby exempted for that purpose from the requirements of subdivision (b) of Section 11346.1. The initial adoption of regulations shall be valid for a period not to exceed two years. After the initial adoption of an emergency regulation pursuant to this section, the department may request approval from the Office of Administrative Law to amend the regulation as an emergency regulation pursuant to Section 11346.1.
(b) An applicant who proposes a housing development project identified in subdivision (d) of Section 65589.5 and whose application is subject to a decision by a local agency that the applicant alleges violates Section 65589.5 may appeal the decision of the local agency to a panel of the committee. The appeal shall be limited to the issue of whether the local agency acted in violation of Section 65589.5.
(c) (1) An applicant shall file an appeal to the committee within 30 days after the date of the decision by the local agency. The committee shall notify the local agency of the filing of an appeal within 10 days, and the local agency shall, within 10 days of the receipt of that notice, transmit a copy of its decision and its reasoning for that decision to the committee, and notify the committee if it will contest the appeal. If the local agency does not transmit a copy of its decision and reasoning within 10 days, the committee shall vacate the decision of the local agency and direct the local agency to issue any necessary approval for the development to the applicant within 30 days of the committee’s decision to vacate. If the local agency transmits a copy of its decision and reasoning within 10 days, the committee shall schedule an appeal hearing within 30 days. The hearing shall take place no more than 60 days after the local agency receives the initial notice, unless all parties to the hearing agree to a later date.

(3)At its next meeting following the hearing, the committee

(2) Following the appeal hearing, the panel shall render a written decision, based upon a majority vote, stating its findings of fact, its conclusions, and the support for them. If the committee vote of the panel. If the panel finds that the local agency disapproved the a housing development identified in subdivision (d) of Section 65598.5 in violation of Section 65589.5, it shall vacate the decision and shall direct the local agency to issue any necessary approval or permit for the development to the applicant within 30 days of the committee’s panel’s decision. If the committee panel finds that the local agency conditioned its approval in a manner rendering the development infeasible for the development of housing for very low, low-, or moderate-income households in violation of that violates Section 65589.5, it the panel shall identify the conditions or requirements that violate subdivision (d) of Section 65589.5 in its decision and shall order the local agency to modify or remove any such condition or requirement so as to make the development no longer infeasible conditions or requirements within 30 days and to issue any necessary permit or approval.

(e)

(d) In any appeal before the committee, the applicant shall have the initial burden of proof to show that it has met the requirements of subdivision (c). In a case of approval with conditions or requirements imposed, the applicant shall also have the burden of proof to show that the conditions and requirements render the provision of housing economically infeasible. If the applicant meets the initial burden of proof, then the local agency shall have the burden of proof to show that its action was consistent with Section 65589.5. burdens of proof and standards of review shall be those established in Section 65589.5.

(f)

(e) The city or county local agency shall carry out the order of the committee within 30 days of its entry, and upon failure to do so, the order of the committee shall for all purposes be deemed to be the action of the local agency, unless the applicant consents to a different decision or order by the local agency. The applicant may enforce the orders of the committee in court. The applicant shall be entitled to attorney’s fees and costs if the applicant prevails in an enforcement action, and the court may impose fines on the city or county local agency consistent with subdivision (k) and (l) of Section 65589.5.

(g)

(f) The department may charge a fee to the applicant that shall not exceed the reasonable cost to the committee of providing the hearing. If the committee orders approval of the proposed development or modifies or removes any conditions or requirements imposed upon the applicant, the city or county local agency shall reimburse the applicant for the fee paid pursuant to this subdivision.

(h)

(g) For the purposes of this section section, the following terms have the following meanings:

(1)“Area median income” means area median income as periodically established by the department pursuant to Section 50093 of the Health and Safety Code.

(2)

(1) “Committee” means the Housing Accountability Committee.

(3)“Housing development” means a development project consisting of 10 or more residential dwelling units or an emergency shelter facility.

(2) “Large jurisdiction” has the same meaning as in subdivision (d) of Section 53559.1 of the Health and Safety Code.
(3) “Small jurisdiction” has the same meaning as in subdivision (c) of Section 53559.1 of the Health and Safety Code.

(i)

(h) The remedies provided in this section are in addition to any other remedy provided by law.

(j)

(i)  The Legislature finds and declares that this section addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all cities, including charter cities.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act or because costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.