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AB-989 Housing Accountability Act: appeals: Office of Housing Appeals.(2021-2022)



Current Version: 08/18/21 - Amended Senate

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AB989:v95#DOCUMENT

Amended  IN  Senate  August 18, 2021
Amended  IN  Senate  July 05, 2021
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 and repeal Section 65589.5.1 of the Government Code, relating to housing.


LEGISLATIVE COUNSEL'S DIGEST


AB 989, as amended, Gabriel. Housing Accountability Act: appeals: Office of Housing Appeals.
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 (department) 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, until January 1, 2029, establish an Office of Housing Appeals (office) within the department, administered by the director of the department, to review housing development projects that are alleged to have been denied or subject to conditions in violation of the Housing Accountability Act. The bill would establish housing appeals panels, consisting of administrative law judges with specified qualifications, within the office. The bill would authorize an applicant applicant, as defined, who proposes a housing development project project, as defined, that consists of 5 or more units pursuant to the Housing Accountability Act, as described above, to appeal a local agency’s decision on the project application to a housing appeals panel. The bill would prohibit an applicant from bringing an action in court alleging a violation of the Housing Accountability Act for any housing development project prior to the final decision of the office, except as specified. The bill would provide that the statute of limitations for a claim alleging a violation of the Housing Accountability Act or any other claim relating to an action of the local agency on the housing development project at issue does not commence until the date of the final decision of the office, as specified.
This bill would require an applicant to file, within, within 30 days after the date of a final decision by the local agency, a written notice of intent, as specified, with the local agency that the applicant intends to file an appeal. The bill would prescribe the timelines within which applicants, the office, 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 office if it will contest an appeal.
This bill would require the panel 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 the Housing Accountability Act. The bill would require the panel to order the local agency to issue any necessary approval for the development and, if applicable, to modify or remove any conditions or requirements that violate the act. The bill would require a panel to render a written decision within 14 days of an appeal hearing and require the office to post written decisions on its internet website.
This bill would provide that a decision by the panel is final, except as provided. is subject to review by the superior court, which shall review the panel’s decision de novo. The bill would require a local agency to carry out an office order within 30 days of entry, unless judicial review is sought. The bill would authorize an applicant to enforce the office 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 local agency. The bill would authorize the department to charge applicants a fee for an appeal, as specified, and if the office orders approval of the proposed development or modifies or removes any conditions or requirements imposed upon the applicant, the bill would require a 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 authorize a court to stay specified court proceedings that are related to an appeal filed with the office until the panel has rendered its written decision.
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 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 65589.5.1 is added to the Government Code, to read:

65589.5.1.
 (a) (1) There shall be within the department an Office of Housing Appeals to review housing development projects identified in subdivision (d) of Section 65589.5 that are alleged to have been denied or subjected to conditions in violation of Section 65589.5.
(2) The director of the department shall administer and direct the day-to-day operations of the office, including, but not limited to, ensuring that each hearing office is sufficiently staffed and that appeals hearings are heard and resolved in a timely and efficient manner. The director shall not direct, oversee, supervise, or be otherwise involved in the decisionmaking process of the housing appeals panels.
(3) The department shall provide the space and clerical and other assistance that the office may require.
(4) Within the office, there shall be housing appeals panels. Any appeal hearing held pursuant to this section shall be conducted by a panel of five three administrative law judges. Each administrative law judge shall be randomly assigned to an appeal hearing.
(5) Each administrative law judge shall possess both of the following qualifications:
(A) Active membership in the State Bar of California for at least five years immediately preceding their designation to a housing appeals panel.
(B) Knowledge and experience with regard to the operation of the Housing Accountability Act (Section 65589.5).
(6) 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).
(7) 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 housing appeal panel. The appeal shall be limited to the issue of whether the local agency acted in violation of Section 65589.5.
(c) (1) Within 30 days after the date of a final decision by the local agency, an applicant that seeks to appeal a decision by a local agency to the office shall file a written notice of intent with the local agency that the applicant intends to file an appeal.
(2) The notice of intent shall include all of the following information:
(A) A description of the proposed project, including assessor parcel numbers for all parcels included in the project.
(B) The specific decision regarding the proposed project by the local agency that the applicant intends to appeal, including the specific denial by the local agency or an exhaustive list of conditions that the applicant alleges to have been imposed in violation of Section 65589.5.
(3) If, within 60 30 days of receipt of the notice of intent, the local agency rescinds its action to deny or impose conditions identified in the notice of intent and takes action to approve the project or revise the conditions identified in the notice of intent, an applicant shall not file an appeal with the office regarding the denial or conditions identified in the notice of intent. If the local agency revises the imposed conditions or imposes any new conditions on the project, an applicant may allege that the revised or new conditions are in violation of Section 65589.5 in its appeal filed pursuant to paragraph (4).
(4) Except as prohibited in paragraph (3), an applicant shall file an appeal to the office no sooner than 60 30 days, and no later than 90 60 days, following the delivery of a notice of intent that complies with paragraph (2). The applicant shall notify the local agency of the filing of the appeal on the same day that the appeal is filed with the office. Except as provided in paragraph (3), the appeal shall be limited to the decision or conditions identified in the notice of intent. The office 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 office, and notify the office if it will contest the appeal. If the local agency does not transmit a copy of its decision and reasoning within 10 days, the office 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 office’s decision to vacate. If the local agency transmits a copy of its decision and reasoning within 10 days, the office shall schedule an appeal hearing within 30 15 days. The hearing shall take place no sooner than 30 days, and no more later than 60 days 45 days, after the local agency receives the initial notice required by this paragraph, unless all parties to the hearing agree to a later date.
(5) If the applicant and the local agency reach a settlement on the issues contained in an appeal filed with the office pursuant to paragraph (4) before the panel renders a written decision pursuant to paragraph (6), the applicant and local agency shall notify the office of the settlement and the office shall take no further action on the appeal.

(5)

(6) Following the appeal hearing, the panel shall render a written decision, decision within 14 days based upon a majority vote of the panel. If the panel finds that the local agency disapproved 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 panel’s decision. If the panel finds that the local agency conditioned its approval in a manner that violates Section 65589.5, 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 conditions or requirements within 30 days and to issue any necessary approval. Written decisions shall be posted immediately on the office’s internet website and be made available to the public.
(d) In any appeal before the office, the burdens of proof and standards of review shall be those established in Section 65589.5.
(e) (1) The decision of the panel shall be final, except that the propriety of the decision is subject to review by the superior court pursuant to Section 1094.5 of the Code of Civil Procedure. Procedure, except that the court shall review the panel’s decision de novo.
(2) The local agency shall carry out the order of the office within 30 days of its entry, unless judicial review is sought by the local agency or the applicant in accordance with paragraph (1).
(3) If judicial review proceedings under Section 1094.5 of the Code of Civil Procedure are not commenced within the time prescribed in paragraph (2), the order of the office 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 office 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 local agency consistent with subdivision (k) and (l) of Section 65589.5.
(f) (1) To facilitate efficient resolution of related claims, a court may stay any court proceeding that is related to any of the following:
(A) An appeal filed with the office pursuant to paragraph (4) of subdivision (c).
(B) A proceeding initiated by a different plaintiff alleging a violation of Section 65589.5 on the same project that is under review with the office.
(C) Any other proceeding concerning a proposed housing development project under review with the office.
(2) This subdivision does not limit a court’s discretion to stay a proceeding for any purpose.

(f)

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

(g)

(h) For the purposes of this section, “office” section:
(1) (A) “Applicant” means the development proponent of a housing development project.
(B) “Applicant” does not include a person who would be eligible to apply for residency in the housing development project or emergency shelter, or a housing organization, as defined in paragraph (2) of subdivision (k) of Section 65589.5, and any of those parties may bring an action in court to enforce the provisions of Section 65589.5 without regard to this section.
(2) “Housing development project” means a housing development project identified in subdivision (d) of Section 65589.5 that consists of five or more units.
(3) “Office” means the Office of Housing Appeals.

(h)

(i) (1) An appplicant applicant shall not bring an action in court to enforce the provisions of Section 65589.5 for any housing development project identified in subdivision (d) of Section 65589.5 prior to the final decision of the office. office, except as provided in paragraphs (2) and (3).
(2) An applicant may bring an action in court to enforce the provisions of Section 65589.5 without regard to this section if both the applicant and the local agency certify in good faith that the office will be unlikely to resolve any alleged violations of Section 65589.5.
(3) Notwithstanding subdivision (b) and except as provided in paragraph (4), an applicant shall not file an alleged violation of Section 65589.5 with the office, and shall instead file the claim pursuant to Section 65589.5 without regard to this section, if the local agency meets any of the following:
(A) The local agency has failed to adopt a housing element that the Department of Housing and Community Development has determined to be in substantial compliance with this article.
(B) The local agency has failed to submit an annual progress report pursuant to paragraph (2) of subdivision (a) of Section 65400 in three or more of the preceding five years.
(C) The local agency has been found by a court to have violated state housing law within the preceding five years, including, but not limited to, any of the following:
(i) The Housing Accountability Act (Section 65589.5).
(ii) Section 65863.
(iii) Section 65913.4.
(iv) The Density Bonus Law (Section 65915).
(v) The Housing Crisis Act of 2019 (Chapter 12 (commencing with Section 66300)).
(vi) The California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2).
(vii) The Unruh Civil Rights Act (Section 51 of the Civil Code), and any implementing regulations thereunder.
(4) Paragraph (3) shall not apply to any local agency without a council of governments and where the Department of Housing and Community Development adopts a final regional housing need plan that allocates the share of the regional housing need to the local agency pursuant to subdivision (b) of Section 65584.
(j) For an applicant enjoined from bringing an action pursuant to Section 65589.5 in court pursuant to subdivision (i), the applicant’s statute of limitations for an action brought pursuant to Section 65589.5 shall not commence until the date of the final decision of the office for either of the following:
(1) Any claim under Section 65589.5.
(2) Any claim based on any other section of law relating to an action of the local agency on the housing development project at issue.
(k) Any deadline established in this section that falls on a weekend or a state holiday shall be extended to the following business day.

(i)

(l)  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.

(j)

(m) This section shall remain in effect only until January 1, 2029, and as of that date is repealed.

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.

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.