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AB-1322 Land use: local measures: conflicts.(2021-2022)



Current Version: 04/05/21 - Amended Assembly Compare Versions information image


AB1322:v97#DOCUMENT

Amended  IN  Assembly  April 05, 2021
Amended  IN  Assembly  March 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1322


Introduced by Assembly Member Bonta
(Coauthor: Assembly Member Ting)

February 19, 2021


An act to add Section 65850.02 65014 to the Government Code, relating to land use.


LEGISLATIVE COUNSEL'S DIGEST


AB 1322, as amended, Bonta. Land use: substantially compliant housing element. local measures: conflicts.
Existing law authorizes the legislative body of any county or city to adopt ordinances that do certain things related to land use, including, but not limited to, regulating the use of buildings, structures, and land as between industry, business, residences, open space, including agriculture, recreation, enjoyment of scenic beauty, use of natural resources, and other purposes, regulating the size and use of lots, yards, courts, and other open spaces, and the intensity of land use.

This bill, commencing January 1, 2022, would, with exceptions, authorize a city council, via resolution, to suspend, as provided, identified provisions of the city’s charter or identified voter-adopted measures, or both, when the city council or county board of supervisors finds, based on substantial evidence, and the Department of Housing and Community Development agrees in writing, that the provisions or measures constitute a substantial obstacle to the city’s adoption or implementation of a timely, substantially compliant housing element. The bill would authorize a city council to authorize an action to be brought in superior court to determine whether the identified provisions of the city charter or identified voter-adopted measures, or both, constitute a substantial obstacle to the city’s adoption or implementation of a timely, substantially compliant housing element, as provided. The bill would also include findings and declarations with regard to, among other things, the lack of adequate and affordable housing available in this state being a matter of statewide concern.

This bill, among other things, would authorize a governing body, defined as a city council or board of supervisors, to commence proceedings pursuant to specified provisions, to determine whether a local measure, defined as any provision of the charter, general plan, or ordinances of the city, county, or city and county that has been approved by the electorate, is in conflict with any of the specified state laws regarding housing. The bill would provide that the governing body cannot be compelled to undertake those proceedings. The bill would also specify what procedures apply if the governing body elects to determine whether there is a conflict between a local measure and the specified housing provisions, including adopting a resolution declaring that the local measure conflicts with state law, and therefore, the city, county, or city and county does not have a duty to defend or enforce the local measure in whole or in part. The bill would provide the parameters under which an interested party could bring an action or proceeding challenging the resolution, and would provide that in that action or proceeding, neither a governing body nor its officers or employees would be required to defend, enforce, or otherwise assert the validity of the local measure.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, applies to charter cities.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: NO  

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


SECTION 1.

 (a) The Legislature finds and declares all of the following:

(1)The lack of adequate housing and affordable housing available in this state is a matter of statewide concern.

(2)

(1) California is experiencing a housing supply crisis, with housing demand far outstripping supply. In 2018, California ranked 49th out of the 50 states in housing units per capita.

(3)

(2) Consequently, existing housing in this state, especially in its largest cities, has become very expensive. Seven of the 10 most expensive real estate markets in the United States are in California. In San Francisco, the median home price is $1.6 million.

(4)

(3) California is also experiencing rapid year-over-year rent growth with three cities in the state having had overall rent growth of 10 percent or more year-over-year, and of the 50 United States cities with the highest United States rents, 33 are cities in California.

(5)

(4) California needs an estimated 180,000 additional homes annually to keep up with population growth, and the Governor has called for 3.5 million new homes to be built over the next seven years.

(6)

(5) The housing crisis has particularly exacerbated the need for affordable homes at prices below current market rates.

(7)

(6) The housing crisis harms families across California and has resulted in all of the following:
(A) Increasing poverty and homelessness, especially first-time homelessness.
(B) Forcing lower income residents into crowded and unsafe housing in urban areas.
(C) Forcing families into lower cost new housing in greenfields at the urban-rural interface with longer commute times and a higher exposure to fire hazard.
(D) Forcing public employees, health care providers, teachers, and others, including critical safety personnel, into more affordable housing farther from the communities they serve, which will exacerbate future disaster response challenges in high-cost, high-congestion areas and increase risk to life.
(E) Driving families out of the state or into communities away from good schools and services, making the ZIP Code where one grew up the largest determinate of later access to opportunities and social mobility, disrupting family life, and increasing health problems due to long commutes that may exceed three hours per day.

(8)

(7) The housing crisis has been exacerbated by the additional loss of units due to wildfires in 2017 and 2018, which impacts all regions of the state. The Carr Fire in 2017 alone burned over 1,000 homes, and over 50,000 people have been displaced by the Camp Fire and the Woolsey Fire in 2018. This temporary and permanent displacement has placed additional demand on the housing market and has resulted in fewer housing units available for rent by low-income individuals.

(9)

(8) Individuals who lose their housing due to fire or the sale of the property cannot find affordable homes or rental units and are pushed into cars and tents.

(10)

(9) Costs for construction of new housing continue to increase. According to the Terner Center for Housing Innovation at the University of California, Berkeley, the cost of building a 100-unit affordable housing project in the state was almost $425,000 per unit in 2016, up from $265,000 per unit in 2000.

(11)

(10) Lengthy permitting processes and approval times, fees and costs for parking, and other requirements further exacerbate cost of residential construction.

(12)

(11) The housing crisis is severely impacting the state’s economy as follows:
(A) Employers face increasing difficulty in securing and retaining a workforce.
(B) Schools, universities, nonprofits, and governments have difficulty attracting and retaining teachers, students, and employees, and our schools and critical services are suffering.
(C) According to analysts at McKinsey and Company, the housing crisis is costing California $140 billion a year in lost economic output.

(13)

(12) The housing crisis also harms the environment by doing both of the following:
(A) Increasing pressure to develop the state’s farmlands, open space, and rural interface areas to build affordable housing, and increasing fire hazards that generate massive greenhouse gas emissions.
(B) Increasing greenhouse gas emissions from longer commutes to affordable homes far from growing job centers.

(14)

(13) Homes, lots, and structures near good jobs, schools, and transportation remain underutilized throughout the state and could be rapidly remodeled or developed to add affordable homes without subsidy where they are needed with state assistance.

(15)

(14) Reusing existing infrastructure and developed properties, and building more smaller homes with good access to schools, parks, and services, will provide the most immediate help with the lowest greenhouse gas footprint to state residents.

(16)In light of the foregoing, the Legislature in 2020 declared a statewide housing emergency, to be in effect until January 1, 2025.

(15) In light of the foregoing, the Legislature enacted the Housing Crisis Act of 2019, to be in effect until January 1, 2025, declaring a statewide housing emergency and finding that the lack of adequate housing and affordable housing available in this state is a matter of statewide concern.
(b) The Legislature further finds and declares all of the following:

(1)Among the factors that have contributed to California’s housing shortage are local land-use restrictions and procedural requirements that city councils may not change through the normal lawmaking process because the restriction or procedure is embedded in the city’s charter or was adopted by a vote of the city’s electorate.

(2)Section 65584.04 of the Government Code prohibits regional councils of governments from reducing a city’s share of the regional housing need on account of local measures, ordinances, and policies, including those adopted by voters, that directly or indirectly limit the number of residential building permits issued by the city.

(3)Courts have found local measures, ordinances, and requirements, including voter-adopted measures, to be preempted by state housing law when the measures operate as a substantial impediment to achieving the city’s housing target.

(4)Subdivision (d) of Section 65589.5 of the Government Code disallows cities from denying an affordable housing project, or conditioning approval in a manner that renders affordable units infeasible, on the grounds that the project is inconsistent with the city’s zoning or the general plan unless “the jurisdiction has adopted a revised housing element in accordance with Section 65588 of the Government Code that is in substantial compliance with” the Housing Element Law.

(5)As a result of the foregoing, city councils in cities with substantial charter-based or voter-adopted land-use restrictions and procedural requirements are in an untenable position. If the council says it will abide by the restriction or requirement, the city risks being found out of compliance with the Housing Element Law, and thus of forfeiting its authority to apply its zoning code and general plan to affordable housing projects. Conversely, if the city council announces that the city will treat the restriction or requirement as void, on the theory that it is probably preempted by state law, the council invites litigation by local interests that benefit from the restriction, and it is not clear whether a court would give appropriate respect to the council’s judgment about the difficulty of compliance.

(c)Thus, for the purposes of furthering regional and fair housing goals, it is the intent of the Legislature to, commencing January 1, 2022, do both of the following:

(1)Authorize city councils to suspend local land-use restrictions and procedural requirements that the council reasonably finds to be a substantial obstacle to complying with state housing law, provided that the Department of Housing and Community Development concurs in the council’s judgment, and provided further that the action of the council does not imperil open space, farmland, or natural habitat that state law or regional planning processes recognize as prioritized for preservation.

(2)Provide city councils with an expedited judicial procedure for determining whether a municipal land-use restriction or procedural requirement is preempted by state housing law.

(1) Many local charter, general plan, or ordinance provisions that have been approved by the electorate cannot thereafter be repealed or amended except by a vote of the people.
(2) When a local charter, general plan, or ordinance provision that has been approved by the voters conflicts with state housing law, the local governing body is often placed in an untenable position. If the governing body enforces or defends the voter-approved provision, the local jurisdiction risks litigation, which may include the remedies set forth in Sections 65585 and 65589.5 of the Government Code, and other applicable law in appropriate cases. Conversely, if the governing body determines that the voter-approved provision is unenforceable, and instead enforces state housing law, it risks litigation by interested persons supporting the voter-approved provision, which may include an award of attorney’s fees under Section 1021.5 of the Code of Civil Procedure or other applicable law in appropriate cases.
(3) It is the intent of the Legislature to establish an efficient procedure for local governing bodies to determine whether a charter, general plan, or ordinance provision that has been approved by the voters conflicts with state housing law, to reduce the risk of litigation and attorney’s fees in the event that the governing body determines that a conflict exists, and to provide certainty and finality for those determinations.
(4) It is not the intent of the Legislature to alter or otherwise affect the substantive rules and standards for determining whether a local charter, general plan, or ordinance provision conflicts with state law, and therefore, may not be enforced in whole or in part.
SEC. 2.Section 65850.02 is added to the Government Code, to read:
65850.02.

(a)Commencing January 1, 2022, notwithstanding subdivision (c) of Section 65589, and for the purposes of furthering fair housing goals, all of the following shall apply:

(1)(A)If a city council or county board of supervisors finds, based on substantial evidence, that identified provisions of the city’s charter, or identified measures adopted by the city’s voters, or both, constitute a substantial obstacle to the city’s adoption or implementation of a timely, substantially compliant housing element, and if the department notifies the city in writing that it agrees with the city’s assessment, then the council may, by resolution adopted by simple majority vote, suspend the provisions or measures.

(B)Within 60 days of receiving the city or county’s findings or proposed findings and supporting evidence, the department shall notify the city or county whether it agrees with those findings.

(2)Notwithstanding any otherwise applicable statute of limitations, a city council may at any time, by resolution adopted by simple majority vote, authorize an action to be brought in superior court pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure, to determine whether identified provisions of the city charter, or identified measures adopted by the city’s electorate, or both, constitute a substantial obstacle to the city’s adoption or implementation of a timely, substantially compliant housing element.

(A)The 60-day statute of limitations provided in Section 860 of the Code of Civil Procedure shall begin to run on the date of the city or county resolution authorizing the action to be brought.

(B)In the proceeding, any interested party, including the city, may appear and take any position on the validity of the identified provisions or measures. Accordingly, for purposes of this proceeding, the term “validate” in Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure means “validate or invalidate,” and the term “contest” means “contest or defend.”

(C)If the city council has found that the identified provisions or measures constitute a substantial obstacle to compliance, and if the department concurred in the city’s assessment, the court shall deem the provisions or measures preempted unless the city’s determination is not supported by substantial evidence in the record.

(D)If the city council has not made a finding as to whether the identified provisions or measures constitute a substantial obstacle, then the court shall determine the matter de novo. If the court finds that the provisions or measures constitute a substantial obstacle, the court shall provide an appropriate remedy.

(b)Nothing in this section shall be construed to authorize a city or county to suspend either of the following:

(1)Voter-adopted measures adopted prior to February 28, 2021, that protect either of the following:

(A)Lands preserved or protected from urban development under existing federal or state programs, or both, designed to protect open space, farmland, environmental habitats, and natural resources on a long-term basis, including land zoned or designated for agricultural protection or preservation.

(B)Lands preserved or protected pursuant to county policies to preserve prime agricultural land, as defined pursuant to Section 56064, within an unincorporated area and land within an unincorporated area zoned or designated for agricultural protection or preservation.

(2)Voter-adopted measures adopted at any time that the Department of Fish and Wildlife finds serves a substantial state conservation interest. The Department of Fish and Wildlife’s finding shall be made in writing and supported by substantial evidence.

(c)The Legislature finds and declares that ensuring access to adequate and affordable housing is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to charter cities.

(d)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 2.

 Section 65014 is added to the Government Code, to read:

65014.
 (a) As used in this section, the following definitions apply:
(1) “Governing body” means the city council or board of supervisors of any city, county, or city and county.
(2) “Local measure” means any provision of the charter, general plan, or ordinances of the city, county, or city and county that has been approved by the electorate. “Local measure” does not include any provision of the charter, general plan, or ordinances that prohibits or restricts conversion of either of the following to nonagricultural uses:
(A) Lands preserved or protected from urban development under existing federal or state programs, or both, designed to protect open space, farmland, environmental habitats, and natural resources on a long-term basis, including land zoned or designated for agricultural protection or preservation.
(B) Lands preserved or protected pursuant to county policies to preserve prime agricultural land, as defined pursuant to Section 56064, within an unincorporated area and land within an unincorporated area zoned or designated for agricultural protection or preservation.
(b) (1) The governing body may, but is not required to, commence proceedings under this section at any time to determine whether a local measure conflicts with any provision of this title pertaining to housing, and therefore, the city, county, or city and county does not have a duty to defend or enforce the local measure.
(2) The procedures set forth in this section are in addition to any other remedies available to the governing body in the event of a conflict.
(3) The governing body shall not be compelled to proceed under this section by mandamus, injunction, or otherwise.
(c) (1) If the governing body elects to proceed under this section, it shall hold a public hearing to consider whether a conflict described in subdivision (b) exists with respect to the local measure. Interested persons may present written or oral comments at the public hearing, which shall become part of the record.
(2) Notice of the hearing shall be published pursuant to Section 6061 in at least one newspaper of general circulation within the jurisdiction of the city, county, or city and county at least 10 days prior to the hearing, or if there is no newspaper of general circulation, the notice shall be posted at least 10 days prior to the hearing in at least three public places within the jurisdiction of the city, county, or city and county.
(d) (1) At the conclusion of the hearing, the governing body may by resolution declare that the local measure conflicts with state law pertaining to housing, and that therefore, the city, county, or city and county does not have a duty to defend or enforce the local measure in whole or in part.
(2) Adoption of a resolution under this subdivision shall not be considered a discretionary project for purposes of Division 13 (commencing with Section 21000) of the Public Resources Code.
(3) When adopting a resolution under this subdivision, the governing body shall be deemed to act in an administrative capacity, and not in a legislative capacity.
(e) (1) The city, county, or city and county may bring an action to determine the validity of a resolution described in subdivision (d) pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.
(2) An action brought by an interested person pursuant to Section 863 of the Code of Civil Procedure shall, notwithstanding the time limits specified in Section 860 of the Code of Civil Procedure, be commenced within 30 days after the date on which the resolution is adopted.
(3) In an action or proceeding to determine the validity of, or to otherwise attack, review, set aside, void, or annul a resolution described in subdivision (d), the issues raised by an interested person shall be limited to those presented to the governing body orally or in writing before the close of the public hearing held under subdivision (c).
(4) Notwithstanding any other law, any factual determinations of the governing body shall be considered conclusive by the court unless the court specifically finds that the factual determination is arbitrary and capricious or substantially unsupported by the evidence considered by the governing body.
(5) Notwithstanding any other law, including without limitation Section 1021.5 of the Code of Civil Procedure, attorney’s fees shall not be awarded against a city, county, or city and county in an action or proceeding to determine the validity of, or to otherwise attack, review, set aside, void, or annul a resolution described in subdivision (d).
(6) In an action or proceeding to determine the validity of, or to otherwise attack, review, set aside, void, or annul a resolution described in subdivision (d), neither city, county, or city and county nor any officer or employee thereof shall have a duty to defend, enforce, or otherwise assert the validity of the local measure that is the subject of the resolution.
(f) If the governing body does not adopt a resolution declaring a conflict as described in subdivision (d), the governing body’s proceedings under this section shall have no legal effect for any purpose, and shall not affect the accrual or time for bringing an action arising from an alleged conflict between the local measure and state law.
(g) The Legislature finds and declares that the establishment of a procedure for local agencies to determine whether a local measure conflicts with state law pertaining to housing is a matter of statewide concern and is not merely a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all local agencies, including charter cities.
(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.