HomeMy WebLinkAboutMINUTES - 06282011 - C.41RECOMMENDATION(S):
OPPOSE Assembly Bill 1220 (Alejo): Land Use and Planning: Cause of Actions: Time
Limits, a bill that would expand from over one year to five years the statute of limitations to
sue a city or county, challenging the adoption of a housing element or a number of related
ordinances, as recommended by the Legislation Committee.
FISCAL IMPACT:
Unknown. According to CSAC analysis, this bill will encourage a broad array of expensive
lawsuits that do not differentiate between major noncompliance with state law or a small
difference in interpretation.
BACKGROUND:
Summary: AB 1220 relates to actions or proceedings against local zoning and planning
decisions of a legislative body to encourage or facilitate the development of affordable
housing. Authorizes a certain notice to be filed any time within a specified number of years
after a specified action pursuant to existing law. Provides that in any action brought against
a city, county, or city and county to challenge the adequacy of a housing element if a court
makes certain findings.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 06/28/2011 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lara DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: June 28, 2011
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 41
To:Board of Supervisors
From:Legislation Committee
Date:June 28, 2011
Contra
Costa
County
Subject:OPPOSE AB 1220 (Alejo): Land Use and Planning: Cause of Actions: Time Limits
AB 1220, by Assembly Member Luis Alejo, would expand from over one year to five years
the statute of limitations to sue a city or county, challenging the adoption of a housing
element or a number of related ordinances. This will leave local agencies, businesses, and
developers open to uncertainty long after decisions have been made. And, it is important to
note that these challenges do not mandate approval of actual housing projects but only
require a change in a planning document.
In Urban Habitats v. City of Pleasanton, the decision this bill is intended to overturn, the
housing advocates were successful in reaching a settlement that overturned the City’s
growth limit. There are also a number of new remedies available to housing advocates to
enforce local housing obligations, at the very time local agencies will be expected to
implement a large number of brand new housing element requirements.
The law has to be balanced – for cities and counties, housing and commercial developers
and advocates. This bill, under existing circumstances, is not a balanced approach. Under
this bill, a small misstep on the part of the local agency can shut down development in a
jurisdiction until a lawsuit is completed, even though more targeted remedies are available
that can require a local agency to make a fix without imposing a full building moratorium
until a court makes a final determination. And again: these challenges, costing local
agencies millions of dollars to defend, are brought to require a specific change in a planning
document, not to build housing.
Last year, the Legislature approved a bill, AB 602 (Feuer), Session of 2009-10, that was
identical to this bill. Governor Schwarzenegger vetoed AB 602, stating:
"Local governments face numerous potential legal liabilities when land is developed. One
of the protections and assurances provided to local governments in order to encourage them
to move forward with land development is that there is a reasonable statute of limitations on
when a legal claim can be filed. Existing law gives interested parties sufficient time to bring
an action, and extending this period to five years could result in uncertainty for local
governments."
ARGUMENTS IN SUPPORT: According to the author, this bill corrects a flawed court
ruling that held that citizens may only challenge the adequacy of a city's or county's housing
element for 90 days from the date of adoption. Combined with the recent change to an
eight-year housing element cycle, the ruling holds the potential for more than seven years of
bad land-use decisions with little recourse for citizen action.
ARGUMENTS IN OPPOSITION: Local government opponents believe a five-year statute
of limitation is too long and that this bill will encourage a broad array of expensive lawsuits
that do not differentiate between major non-compliance with state law or a small difference
in interpretation. They believe that this additional legal exposure is especially unwarranted
at a time when they are facing significant fiscal pressures. They argue, moreover, that the
challenges allowed by this bill do not mandate approval of actual housing projects but only
require a change in a planning document. The Civil Justice Association opposes lengthening
statutes of limitations generally. They believe memories fade, witnesses become difficult to
locate, and courts are less likely to be fair. Moreover, short statutes of limitations encourage
the diligent settling of claims.
CSAC is opposed to this measure. At its June 20, 2011 meeting, the Legislation Committee
considered the bill and recommends that the Board of Supervisors oppose it.
BACKGROUND: (CONT'D)
STATUS:
02/18/2011 INTRODUCED.
03/21/2011 To ASSEMBLY Committees on HOUSING AND COMMUNITY
DEVELOPMENT and LOCAL GOVERNMENT.
04/25/2011 From ASSEMBLY Committee on HOUSING AND COMMUNITY
DEVELOPMENT with author's amendments.
04/25/2011 In ASSEMBLY. Read second time and amended. Re-referred to Committee
on HOUSING AND COMMUNITY DEVELOPMENT.
04/27/2011 From ASSEMBLY Committee on HOUSING AND COMMUNITY
DEVELOPMENT: Do pass to Committee on LOCAL GOVERNMENT.
05/04/2011 From ASSEMBLY Committee on LOCAL GOVERNMENT: Do pass.
05/09/2011 In ASSEMBLY. Read second time. To third reading.
05/12/2011 In ASSEMBLY. Read third time. Passed ASSEMBLY. *****To SENATE.
05/26/2011 To SENATE Committee on TRANSPORTATION AND HOUSING.
06/14/2011 From SENATE Committee on TRANSPORTATION AND HOUSING: Do
pass.
SUPPORT:
California Rural Legal Assistance Foundation (source) Housing California (source) The
Arc of California Bay Area Council California Association of Realtors California
Coalition for Rural Housing Century Housing Corporation Community Housing
Improvement Program Congress of California Seniors Corporation for Supportive
Housing Desert Manna Los Angeles Homeless Services Authority Mammoth Lakes
Housing Inc. Mercy Housing Natural Resources Defense Council Planning and
Conservation League Public Advocates San Diego Housing Federation Self-Help
Enterprises Silicon Valley Leadership Group Sonoma County Task Force for the
Homeless Southern California Association of Non-Profit Housing Transform United
Cerebral Palsy Urban Habitat Western Center on Law and Poverty
OPPOSITION :
Affordable Housing Advocates American Council of Engineering Companies of
California American Planning Association, California Chapter Association of California
Cities - Orange County California State Association of Counties Cities of Brea, Carlsbad,
Cerritos, Cypress, Eastvale, Fullerton, Mission Viejo, Red Bluff, and Whittier Civil
Justice Association of California Counties of Marin, Orange, San Diego, Santa Clara, and
Tulare Fresno Mayor Ashley Swearengin League of California Cities Los Angeles
Division of the League of California Cities Regional Council of Rural Counties Town of
Apple Valley
CONSEQUENCE OF NEGATIVE ACTION:
If the Board does not take action to oppose this bill, it will not be on record with its
opposition.
CHILDREN'S IMPACT STATEMENT:
None.
ATTACHMENTS
Bill Text AB 1220
AMENDED IN ASSEMBLY APRIL 25, 2011
california legislature—2011–12 regular session
ASSEMBLY BILL No. 1220
Introduced by Assembly Member Alejo
(Principal coauthor: Senator Steinberg)
(Coauthor: Assembly Member Coauthors: Assembly Members Atkins
and Cedillo)
February 18, 2011
An act to amend Sections 65009, 65589.3, and 65755 of the
Government Code, relating to land use.
legislative counsel’s digest
AB 1220, as amended, Alejo.Land use and planning: cause of actions:
time limitations.
(1) The Planning and 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 of accrual
of the cause of action, if it meets certain requirements. Where the action
or proceeding is brought in support of or to encourage or facilitate the
development of housing that would increase the community’s supply
of affordable housing, a cause of action accrues 60 days after notice is
filed or the legislative body takes a final action in response to the notice,
whichever occurs first.
This bill would authorize the notice to be filed any time within 5 years
after a specified action pursuant to existing law. The bill would declare
the intent of the Legislature that its provisions modify a specified court
opinion. The bill would also provide that in that specified action or
proceeding, no remedy pursuant to specified provisions of law abrogate,
impair, or otherwise interfere with the full exercise of the rights and
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protections granted to a tentative map application or a developer, as
prescribed.
(2) The Planning and Zoning law establishes a rebuttable
presumption, in any action filed on or after January 1, 1991, taken to
challenge the validity of a housing element, of the validity of a housing
element or amendment if the Department of Housing and Community
Development has found that the element or amendment substantially
complies with specified provisions of existing law.
This bill would provide that in any action brought against a city,
county, or city and county to challenge the adequacy of a housing
element, if a court finds that the adopted housing element or amended
housing element for the current planning period substantially complies
with specified provisions, the element or amendment be deemed to
satisfy any condition of a state-administered housing grant program
requiring a department finding of housing element compliance.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
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SECTION 1.It is the intent of the Legislature in enacting
Section 2 of this act to modify the court’s opinion in Urban Habitat
Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, with
respect to the interpretation of Section 65009 of the Government
Code.
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
or proceeding 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 or proceedings filed to attack, review, set aside, void, or
annul a decision of a city, county, or city and county pursuant to
this division, including, but not limited to, the implementation of
general plan goals and policies that provide incentives for
affordable housing, open-space and recreational opportunities, and
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other related public benefits, 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 clerk of the board of
supervisors. 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 clerk
of the board of supervisors pursuant to subdivision (d), or both.
(c) (1) Except as provided in subdivision (d), 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:
(A) To attack, review, set aside, void, or annul the decision of
a legislative body to adopt or amend a general or specific plan.
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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.
(B) To attack, review, set aside, void, or annul the decision of
a legislative body to adopt or amend a zoning ordinance.
(C) To determine the reasonableness, legality, or validity of any
decision to adopt or amend any regulation attached to a specific
plan.
(D) 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.
(E) 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.
(F) Concerning any of the proceedings, acts, or determinations
taken, done, or made prior to any of the decisions listed in
subparagraphs (A), (B), (C), (D), and (E).
(2) In the case of an action or proceeding challenging the
adoption or revision of a housing element pursuant to this
subdivision, the action or proceeding may, in addition, be
maintained if it is commenced and service is made on the
legislative body within 60 days following the date that the
Department of Housing and Community Development reports its
findings pursuant to subdivision (h) of Section 65585.
(d) (1) 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, except that in no
case shall the action or proceeding be commenced more than five
years after an action described in subparagraph (B), if the action
or proceeding meets both of the following requirements:
(A) It is brought in support of or to encourage or facilitate the
development of housing that would increase the community’s
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supply of housing affordable to persons and families with low or
moderate incomes, 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, or middle-income
households, as defined in Section 65008 of this code. This
subdivision is not intended to require that the action or proceeding
be brought in support of or to encourage or facilitate a specific
housing development project.
(B) It is brought with respect to actions taken pursuant to Article
10.6 (commencing with Section 65580) of Chapter 3, Section
65863.6, or Chapter 4.2 (commencing with Section 65913), or to
challenge the adequacy of an ordinance adopted pursuant to Section
65915.
(2) A cause of action brought pursuant to this subdivision shall
not be maintained until 60 days have expired following notice to
the city or clerk of the board of supervisors 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. This notice
may be filed at any time within five years after an action described
in subparagraph (B) of paragraph (1). 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.
(3) After the adoption of a housing element covering the current
planning period, no action shall be filed pursuant to this subdivision
to challenge a housing element covering a prior planning period.
(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
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body of a city, county, or city and county made pursuant to this
division on or after January 1, 1984.
SEC. 3.Section 65589.3 of the Government Code is amended
to read:
65589.3.(a) In any action filed on or after January 1, 1991,
taken to challenge the validity of a housing element, there shall
be a rebuttable presumption of the validity of the element or
amendment if, pursuant to Section 65585, the department has found
that the element or amendment substantially complies with the
requirements of this article.
(b) In any action brought against a city, county, or city and
county to challenge the adequacy of a housing element, if a court
finds that the adopted housing element or amended housing element
for the current planning period substantially complies with all of
the requirements of this article, including, without limitation but
not limited to, the requirements for public participation set forth
in paragraph (7) of subdivision (c) of Section 65583, the element
or amendment shall be deemed to satisfy any condition of a
state-administered housing grant program requiring a department
finding that the housing element substantially complies with the
requirements of this article.
SEC. 4.Section 65755 of the Government Code is amended
to read:
65755.(a) The court shall include, in the order or judgment
rendered pursuant to Section 65754, one or more of the following
provisions for any or all types or classes of developments or any
or all geographic segments of the city, county, or city and county
until the city, county, or city and county has substantially complied
with the requirements of Article 5 (commencing with Section
65300):
(1) Suspend the authority of the city, county, or city and county
pursuant to Division 13 (commencing with Section 17910) of the
Health and Safety Code, to issue building permits, or any category
of building permits, and all other related permits, except that the
city, county, or city and county shall continue to function as an
enforcement agency for review of permit applications for
appropriate codes and standards compliance, prior to the issuance
of building permits and other related permits for residential housing
for that city, county, or city and county.
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(2) Suspend the authority of the city, county, or city and county,
pursuant to Chapter 4 (commencing with Section 65800) to grant
any and all categories of zoning changes, variances, or both.
(3) Suspend the authority of the city, county, or city and county,
pursuant to Division 2 (commencing with Section 66410), to grant
subdivision map approvals for any and all categories of subdivision
map approvals.
(4) Mandate the approval of all applications for building permits,
or other related construction permits, for residential housing where
a final subdivision map, parcel map, or plot plan has been approved
for the project, where the approval will not impact on the ability
of the city, county, or city and county to properly adopt and
implement an adequate housing element, and where the permit
application conforms to all code requirements and other applicable
provisions of law except those zoning laws held to be invalid by
the final court order, and changes to the zoning ordinances adopted
after such final court order which were enacted for the purpose of
preventing the construction of a specific residential development.
(5) Mandate the approval of any or all final subdivision maps
for residential housing projects which have previously received a
tentative map approval from the city, county, or city and county
pursuant to Division 2 (commencing with Section 66410) when
the final map conforms to the approved tentative map, the tentative
map has not expired, and where approval will not impact on the
ability of the city, county, or city and county to properly adopt and
implement an adequate housing element.
(6) Mandate that notwithstanding the provisions of Sections
66473.5 and 66474, any tentative subdivision map for a residential
housing project shall be approved if all of the following
requirements are met:
(A) The approval of the map will not significantly impair the
ability of the city, county, or city and county to adopt and
implement those elements or portions thereof of the general plan
which have been held to be inadequate.
(B) The map complies with all of the provisions of Division 2
(commencing with Section 66410), except those parts which would
require disapproval of the project due to the inadequacy of the
general plan.
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(C) The approval of the map will not affect the ability of the
city, county, or city and county to adopt and implement an adequate
housing element.
(D) The map is consistent with the portions of the general plan
not found inadequate and the proposed revisions, if applicable, to
the part of the plan held inadequate.
(b) Any order or judgment of a court which includes the
remedies described in paragraphs (1), (2), or (3) of subdivision (a)
shall exclude from the operation of that order or judgment any
action, program, or project required by law to be consistent with
a general or specific plan if the court finds that the approval or
undertaking of the action, program, or project complies with both
of the following requirements:
(1) That it will not significantly impair the ability of the city,
county, or city and county to adopt or amend all or part of the
applicable plan as may be necessary to make the plan substantially
comply with the requirements of Article 5 (commencing with
Section 65300) in the case of a general plan, or Article 8
(commencing with Section 65450) in the case of a specific plan.
(2) That it is consistent with those portions of the plan
challenged in the action or proceeding and found by the court to
substantially comply with applicable provisions of law.
The party seeking exclusion from any order or judgment of a
court pursuant to this subdivision shall have the burden of showing
that the action, program, or project complies with paragraphs (1)
and (2).
(c) Notwithstanding Section 65754.4 or subdivisions (a) and
(b), in any action or proceeding brought pursuant to subdivision
(d) of Section 65009, no remedy pursuant to this section or
injunction pursuant to Section 65754.5 shall abrogate, impair, or
otherwise interfere with the full exercise of the rights and
protections granted to (1) an applicant for a tentative map pursuant
to Section 66474.2, or (2) a developer pursuant to Sections 65866
and 66498.1
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