HomeMy WebLinkAbout2017-08-22 - AGENDA REPORTS - STATE LEGISLATION SB 167 (2)0
Agenda Item: 5
CITY OF SANTA CLARITA
Q:° AGENDA REPORT
CONSENT CALENDAR
7,
CITY MANAGER APPROVAL: 1 j4 _ "
DATE: August 22, 2017
SUBJECT: STATE LEGISLATION: SENATE BILL 167
DEPARTMENT: City Manager's Office
PRESENTER: Masis Hagobian
RECOMMENDED ACTION
City Council adopt the Legislative Committee's recommendation to oppose Senate Bill 167
(Skinner) and transmit position statements to Senator Skinner, Santa Clarita's state legislative
delegation, appropriate legislative committees, Governor Brown, and the League of California
Cities.
BACKGROUND
Authored by Senator Nancy Skinner (D -9 -Berkeley), Senate Bill 167 imposes a minimum fine of
$10,000 per housing unit in a housing development project if a court finds that a city and/or
county violated the Housing Accountability Act when disapproving a residential development
project.
The Housing Accountability Act is a California state law that requires cities and counties, under
existing planning and zoning law, to prepare and adopt a general plan, including a housing
element, to guide the future growth of a community. The housing element consists of an
identification and analysis of existing and projected housing needs and a statement of goals,
policies, objectives, financial resources and scheduled programs for the preservation,
improvement, and development of housing.
Additionally, this bill:
1. Clarifies that a change in a zoning ordinance or general plan land use designation
subsequent to the date the application was deemed complete shall not constitute a valid
basis to disapprove or condition approval of the housing development project or
emergency shelter.
2. Requires a city and/or county to publish an analysis of the requirements of the Housing
Accountability Act as part of its review of each application for a housing development
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prod ect.
3. Provides that a housing organization shall be entitled to reasonable attorney's fees and
costs.
According to the author, "The Housing Accountability Act has been a tool used to ensure local
jurisdictions build housing the state desperately needs. Strengthening the Housing
Accountability Act will make it more difficult for local governments to disapprove, prolong, or
reject proposed housing developments. This bill addresses the severity of California's housing
crisis by taking a critical look at cities' approval process for development. State courts are often
too deferential to localities in accepting any justification to deny a good housing project that
otherwise meets all development requirements. Although there is an evident lack of funding,
space, and construction, there are solutions the state can implement to ensure development is
taking place in conjunction with a city's local laws."
Furthermore, supporters of this bill argue that, "the current enforcement mechanisms of the
Housing Accountability Act are inadequate to achieve compliance from local governments. The
housing shortage, while felt regionally and statewide, is often created by the individual decisions
of local jurisdictions. It is critical to prevent localities from saying no to housing at the expense
of California as a whole."
Opponents cite the following issues with Senate Bill 167:
• The bill requires the court to consider the local agency's process in attaining its target
allocation of the regional housing need in determining the amount of fine to impose on a
local agency that has violated the Housing Accountability Act. The regional housing
need is a planning tool and was not designed to be used as a production goal or target.
Fines should only be assessed based on existing requirements in housing element law that
local agencies are already required to meet by law;
• Local agencies should have an opportunity to cure a violation of the Housing
Accountability Act before fines are imposed; and
• The bill should provide more clarity as to what should be included in the new
requirement for a local agency to publish an analysis of the Housing Accountability Act
for a housing development project.
The City of Santa Clarita 2017 Legislative Platform (Legislative Platform) includes a component
related to local land use and elements proposed in this bill. Specifically, component 15 under the
"State" section of the Legislative Platform advises that the City Council, "Oppose legislation that
would interfere with, limit or eliminate the decision-making authority of local governments in
the area of local land use."
Senate Bill 167 passed the Senate on June 1, 2017, (30-10-0) and passed the Assembly
Committee on Local Government (7-1-1) on July 12, 2017. Senator Scott Wilk voted in
opposition of the bill and Senator Henry Stern voted in support of the bill. Assembly Member
Tom Lackey voted in support of this bill as a committee member on the Assembly Committee on
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Local Government. This bill will neat be heard by the Assembly Committee on Appropriations.
The City Council Legislative Committee met on July 13, 2017, and recommends that the City
Council adopt an "oppose" position for Senate Bill 167.
ALTERNATIVE ACTION
1. Adopt a "neutral" position on Senate Bill 167
2. Adopt a "support" position on Senate Bill 167
3. Take no action on Senate Bill 167
4. Refer Senate Bill 167 back to the Legislative Committee
5. Other action, as determined by the City Council
FISCAL IMPACT
The resources required to implement the recommended action are contained within the City of
Santa Clarita's adopted 2017/18 budget.
ATTACHMENTS
SB 167 (Skinner)
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AMENDED IN ASSEMBLY JULY 13, 2017
AMENDED IN ASSEMBLY JULY 3, 2017
AMENDED IN SENATE MAY 23, 2017
AMENDED IN SENATE MAY 9, 2017
AMENDED IN SENATE APRIL 17, 2017
AMENDED IN SENATE MARCH 29, 2017
AMENDED IN SENATE MARCH 14, 2017
SENATE BILL
No. 167
Introduced by Senator Skinner
(Principal coauthor: Assembly Member Bocanegra)
(Coauthors: Senators Wiener and Beall)
January 23, 2017
An act to amend Section 65589.5 of the Government Code, relating
to housing.
LEGISLATIVE COUNSEL'S DIGEST
SB 167, as amended, Skinner. Housing Accountability Act.
(1) The Housing Accountability Act, among other things, prohibits
a local agency from disapproving, or conditioning approval in a manner
than renders infeasible, a housing development project for very low,
low-, or moderate -income households or an emergency shelter unless
the local agency makes specified written findings based upon substantial
evidence in the record.
This bill would require the findings of the local agency to instead be
based on a preponderance of the evidence in the record.
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(2) The act authorizes a local agency to disapprove or condition
approval of a housing development or emergency shelter, as described
above, if, among other reasons, the housing development project or
emergency shelter is inconsistent with both the jurisdiction's zoning
ordinance and general plan land use designation as specified in any
element of the general plan as it existed on the date the application was
deemed complete, and the jurisdiction has adopted a revised housing
element in accordance with specified law.
This bill would specify that a change to the zoning ordinance or
general plan land use designation subsequent to the date the application
was deemed complete does not constitute a valid basis to disapprove
or condition approval of the housing development project or emergency
shelter.
(3) The act defines various terms for purposes of its provisions,
including the term "housing development project," which is defined as
a project consisting either of residential units only, mixed-use
developments consisting of residential and nonresidential units, or
transitional housing or supportive housing. For a mixed-use
development for these purposes, the act requires that nonresidential
uses be limited to neighborhood commercial uses, as defined, and to
the first floor of buildings that are 2 or more stories.
This bill would instead require, with respect to mixed-use
developments, that 2/ of the square footage be designated for residential
use.
(4) If a local agency proposes to disapprove a housing development
project that complies with applicable, objective generalplan andzoning
standards and criteria, or to approve it on the condition that it be
developed at a lower density, the act requires that the local agency base
its decision upon written findings supported by substantial evidence on
the record that specified conditions exist.
This bill would specify that a housing development project or
emergency shelter is deemed consistent, compliant, and in conformity
with an applicable plan, program, policy, ordinance, standard,
requirement, or other similar provision for purposes of the
above-described provisions if there is substantial evidence that would
allow a reasonable person to conclude that the housing development
project or emergency shelter is consistent, compliant, or in conformity.
The bill, if the local agency considers the housing development project
to be inconsistent, not in compliance, or not in conformity, would require
the local agency to provide the applicant with written documentation
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identifying the provision or provisions, and an explanation ofthe reason
or reasons it considers the housing development to be inconsistent, not
in compliance, or not in conformity within specified time periods. Ifthe
local agency fails to provide this documentation, the bill would provide
that the housing development project would be deemed consistent,
compliant, and in conformity with the applicable plan, program, policy,
ordinance, standard, requirement, or other similar provision. By
requiring local agencies to provide documentation related to
disapprovals of housing development projects, this bill would impose
a state -mandated local program.
(5) The act authorizes the project applicant, a person who would be
eligible to apply for residency in the development or emergency shelter,
or a housing organization, as defined, to bring an action to enforce its
provisions.
This bill would entitle a housing organization to reasonable attorney's
fees and costs if it is the prevailing party in an action to enforce the act.
(4)
(6) If a court finds that the local agency disapproved, or conditioned
approval in a manner that renders infeasible the project or emergency
shelter or housing for very low, low-, or moderate -income households
without making the required findings or without making sufficient
findings, the act requires the court to issue an order or judgment
compelling compliance with its provisions within 60 days, including
an order that the local agency take action on the development project
or emergencyskelter: shelter and awarding attorney's fees and costs.
This bill would -instead additionally require the court to issue an order
eourt compelling compliance with the act, as described above, ifit finds
that either the local agency, in violation of a specified provision of the
act, disapproved or conditioned approval of a housing development
project in a manner rendering it infeasible for the development of an
emergency shelter or certain housing without making the required
findings or without making findings supported by a preponderance of
the evidence, or, the local agency, in violation of another specified
provision of the act, disapproved a housing development project
complying with specified standards and criteria or imposed a condition
that the project be developed at a lower density, without making the
required findings or without making findings supported by a
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preponderance of the evidence. The bill would -require authorize the
courtto issue an order or judgment directing the local agency to approve
the housing development project or emergency shelter if the court finds
that the local agency acted in bad faith when it disapproved or
conditionally approved the housing development projector emergency
sheltef. shelter in violation of the act.
(7) The act authorizes the court to impose fines if it finds that a local
agency acted in bad faith when it disapproved or conditionally approved
the housing development or emergency shelter and failed to carry out
the court's order or judgment compelling compliance within 60 days
of the court's judgment. The act requires that the fines be deposited
into ahousing trust fund and committed for the sole purpose of financing
newly constructed housing units affordable to extremely low, very low,
or low-income households.
ThisJbi4+ bill, upon a determination that the local agency has failed
to comply with the order or judgment compelling compliance with these
provisions within 60 days, would instead require the court to impose
fines,
i€ as described above, in every instance in which the court determines
that its order or judgment has not been: eaffied out within: 60 days. 44te
bill would require the loettl ageney to deposit any fines levied into ft
housing tmst . the local agency disapproved, or conditioned
approval in a manner that renders infeasible, the housing development
project or emergency shelter without making the required findings or
without making sufficientfindings. The bill would require that the fine
be in a minimum amount of $10,000 per housing unit in the housing
development project on the date the application was deemed complete.
In determining the amount of fine to impose, the bill would require the
court to consider the local agency's progress in attaining its target
allocation of the regional housing -need need and any prior violations
of the aet, the L__ a __. of the , _ __, :_ i a: _.: _._. whether the :_ i a: _.: _._
would impose, tmd the ratio oftneditm home priee to meditm household
act. The bill would authorize
the local agency to instead deposit the fine into a specified state fund,
and would also provide that any funds in a local housing trust fund not
expended after 5 years would revert to the state and be deposited in
that fund, to be used upon appropriation by the Legislature for financing
newly constructed housing units affordable to extremely low, very low,
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or low-income households. If the local agency has acted in bad faith
and failed to carry out the court's order, as described above, the bill
would require the court to multiply the fine by a factor of 5.
This bill would also require that a petition to enforce the act be filed
and served no later than 90 days from the later of (a) the effective date
of a decision of the local agency imposing conditions on, disapproving,
or taking any other final action on a housing development project or
(b) the expiration of certain time periods specified in the Permit
Streamlining Act.
(8) In order to obtain appellate review of a trial court's order, the
act requires a party to file a petition within 20 days after service upon
it of a written notice of the entry of the order, or within such further
time not exceeding an additional 20 days as the trial court may for good
cause allow.
This bill would allow a party to instead appeal a trial court's order
or judgment to the court of appeal pursuant to specified law.
(6)
(9) This bill would make various technical and conforming changes
to the Housing Accountability Act.
(10) This bill would incorporate additional changes to Section
65589.5 ofthe Government Code proposed byAB 1515 to be operative
only if this bill andAB 1515 are enacted and this bill is enacted last.
(11) 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: aayes.
State -mandated local program: tie -yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 65589.5 of the Government Code is
2 amended to read:
3 65589.5. (a) The Legislature finds and declares all of the
4 following:
5 (1) The lack of housing, including emergency shelters, is a
6 critical problem that threatens the economic, environmental, and
7 social quality of life in California
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1 (2) California housing has become the most expensive in the
2 nation. The excessive cost ofthe state's housing supply is partially
3 caused by activities and policies of many local governments that
4 limit the approval of housing, increase the cost of land for housing,
5 and require that high fees and exactions be paid by producers of
6 housing.
7 (3) Among the consequences of those actions are discrimination
8 against low-income and minority households, lack of housing to
9 support employment growth, imbalance in jobs and housing,
10 reduced mobility, urban sprawl, excessive commuting, and air
11 quality deterioration.
12 (4) Many local governments do not give adequate attention to
13 the economic, environmental, and social costs of decisions that
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result in disapproval of housing development projects, reduction
in density of housing projects, and excessive standards for housing
development projects.
(b) It is the policy of the state that a local government not reject
or make infeasible housing development projects, including
emergency shelters, that contribute to meetingthe need determined
pursuantto this article without athorough analysis of the economic,
social, and environmental effects of the action and without
complying with subdivision (d).
(c) The Legislature also recognizes that premature and
unnecessary development of agricultural lands for urban uses
continues to have adverse effects on the availability of those lands
for food and fiber production and on the economy of the state.
Furthermore, it is the policy of the state that development should
be guided away from prime agricultural lands; therefore, in
implementing this section, local jurisdictions should encourage,
to the maximum extent practicable, in filling existing urban areas.
(d) A local agency shall not disapprove a housing development
project, including farmworker housing as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code, for very
low, low-, or moderate -income households, or an emergency
shelter, or condition approval in a manner that renders the housing
development proj ect infeasible for development for the use of very
low, low-, or moderate -income households, or an emergency
shelter, including through the use of design review standards,
unless it makes written findings, based upon a preponderance of
the evidence in the record, as to one of the following:
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1 (1) The jurisdiction has adopted ahousing element pursuant to
2 this article that has been revised in accordance with Section 65588,
3 is in substantial compliance with this article, and the jurisdiction
4 has met or exceeded its share of the regional housing need
5 allocation pursuant to Section 65584 for the planning period for
6 the income category proposed forthe housing development project,
7 provided that any disapproval or conditional approval shall not be
8 based on any of the reasons prohibited by Section 65008. If the
9 housing development project includes a mix of income categories,
10 and the jurisdiction has not met or exceeded its share of the regional
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housing need for one or more of those categories, then this
paragraph shall not be used to disapprove or conditionally approve
the housing development project. The share of the regional housing
need met by the jurisdiction shall be calculated consistently with
the forms and definitions that may be adopted by the Department
of Housing and Community Development pursuant to Section
65400. In the case of an emergency shelter, the jurisdiction shall
have met or exceeded the need for emergency shelter, as identified
pursuant to paragraph (7) of subdivision (a) of Section 65583. Any
disapproval or conditional approval pursuant to this paragraph
shall be in accordance with applicable law, rule, or standards.
(2) The housing development project or emergency shelter as
proposed would have a specific, adverse impact upon the public
health or safety, and there is no feasible method to satisfactorily
mitigate or avoid the specific adverse impact without rendering
the development unaffordable to low- and moderate -income
households or rendering the development of the emergency shelter
financially infeasible. As used in this paragraph, a "specific,
adverse impact' means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed
on the date the application was deemed complete. Inconsistency
with the zoning ordinance or general plan land use designation
shall not constitute a specific, adverse impact upon the public
health or safety.
(3) The denial of the housing development projector imposition
of conditions is required in order to comply with specific state or
federal law, and there is no feasible method to comply without
rendering the development unaffordable to low- and
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1 moderate -income households or rendering the development of the
2 emergency shelter financially infeasible.
3 (4) The housing development project or emergency shelter is
4 proposed on land zoned for agriculture or resource preservation
5 that is surrounded on at least two sides by land being used for
6 agricultural or resource preservation purposes, or which does not
7 have adequate water or wastewater facilities to serve the project.
8 (5) The housing development project or emergency shelter is
9 inconsistent with both the jurisdiction's zoning ordinance and
10 general plan land use designation as specified in any element of
11 the general plan as it existed on the date the application was
12 deemed complete, and the jurisdiction has adopted a revised
13 housing element in accordance with Section 65588 that is in
14 substantial compliance with this article. For purposes of this
15 section, a change to the zoning ordinance or general plan land use
16 designation subsequent to the date the application was deemed
17 complete shall not constitute a valid basis to disapprove or
18 condition approval of the housing development project or
19 emergency shelter.
20 (A) This paragraph cannot be utilized to disapprove or
21 conditionally approve ahousing development project ifthe housing
22 development project is proposed on a site that is identified as
23 suitable or available for very low, low-, or moderate -income
24 households in the jurisdiction's housing element, and consistent
25 with the density specified in the housing element, even though it
26 is inconsistent with both the jurisdiction's zoning ordinance and
27 general plan land use designation.
28 (B) If the local agency has failed to identify in the inventory of
29 land in its housing element sites that can be developed for housing
30 within the planning period and are sufficient to provide for the
31 jurisdiction's share of the regional housing need for all income
32 levels pursuant to Section 65584, then this paragraph shall not be
33 utilized to disapprove or conditionally approve a housing
34 development project proposed for asite designated in any element
35 of the general plan for residential uses or designated in any element
36 of the general plan for commercial uses if residential uses are
37 permitted or conditionally permitted within commercial
38 designations. In any action in court, the burden of proof shall be
39 on the local agency to show that its housing element does identify
40 adequate sites with appropriate zoning and development standards
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1 and with services and facilities to accommodate the local agency's
2 share of the regional housing need for the very low, low-, and
3 moderate -income categories.
4 (C) If the local agency has failed to identify a zone or zones
5 where emergency shelters are allowed as a permitted use without
6 a conditional use or other discretionary permit, has failed to
7 demonstrate that the identified zone or zones include sufficient
8 capacity to accommodate the need for emergency shelter identified
9 in paragraph (7) of subdivision (a) of Section 65583, or has failed
10 to demonstrate that the identified zone or zones can accommodate
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at least one emergency shelter, as required by paragraph (4) of
subdivision (a) of Section 65583, then this paragraph shall not be
utilized to disapprove or conditionally approve an emergency
shelter proposed for a site designated in any element of the general
plan for industrial, commercial, or multifamily residential uses. In
any action in court, the burden of proof shall be on the local agency
to show that its housing element does satisfy the requirements of
paragraph (4) of subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local
agency from complying with the congestion management program
required by Chapter 2.6 (commencing with Section 65088) of
Division 1 of Title 7 or the California Coastal Act of 1976
(Division 20 (commencing with Section 30000) of the Public
Resources Code). Neither shall anything in this section be
construed to relieve the local agency from making one or more of
the findings required pursuant to Section 21081 of the Public
Resources Code or otherwise complying with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).
(f) (1) Nothing in this section shall be construed to prohibit a
local agency from requiring the housing development project to
comply with objective, quantifiable, written development standards,
conditions, and policies appropriate to, and consistent with, meeting
the jurisdiction's share of the regional housing need pursuant to
Section 65584. However, the development standards, conditions,
and policies shall be applied to facilitate and accommodate
development at the density permitted on the site and proposed by
the development.
(2) Nothing in this section shall be construed to prohibit a local
agency from requiring an emergency shelter project to comply
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with objective, quantifiable, written development standards,
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conditions, and policies that are consistent with paragraph (4) of
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subdivision (a) of Section 65583 and appropriate to, and consistent
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with, meeting the jurisdiction's need for emergency shelter, as
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identified pursuant to paragraph (7) of subdivision (a) of Section
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65583. However, the development standards, conditions, and
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policies shall be applied by the local agency to facilitate and
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accommodate the development of the emergency shelter project.
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(3) This section does not prohibit a local agency from imposing
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fees and other exactions otherwise authorized by law that are
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essential to provide necessary public services and facilities to the
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housing development project or emergency shelter.
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(g) This section shall be applicable to charter cities because the
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Legislature finds that the lack of housing, including emergency
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shelter, is a critical statewide problem.
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(h) The following definitions apply for the purposes of this
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section:
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(1) "Feasible" means capable of being accomplished in a
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successful manner within a reasonable period of time, taking into
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account economic, environmental, social, and technological factors.
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(2) "Housing development project" means a use consisting of
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any of the following:
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(A) Residential units only.
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(B) Mixed-use developments consisting of residential and
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nonresidential uses =- --de=ed- tionresideittial uses afe limited `
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neighbofhood eommereia4 uses mid to 4te first floor of buildings
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thaf afe two or more stories. As used itt this pafagraph,
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stores 4taf ftimish goods tmd sefviees primarily to residents ofthe
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neighbofhood. with at least two-thirds of the square footage
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designated for residential use.
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(C) Transitional housing or supportive housing.
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(3) "Housing for very low, low-, or moderate -income
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households" means that either (A) at least 20 percent of the total
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units shall be sold or rented to lower income households, as defined
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in Section 50079.5 of the Health and Safety Code, or (B) 100
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percent of the units shall be sold or rented to persons and families
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of moderate income as defined in Section 50093 of the Health and
39 Safety Code, or persons and families of middle income, as defined
40 in Section 65008 of this code. Housing units targeted for lower
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1 income households shall be made available at a monthly housing
2 cost that does not exceed 30 percent of 60 percent of area median
3 income with adjustments for household size made in accordance
4 with the adjustment factors on which the lower income eligibility
5 limits are based. Housing units targeted for persons and families
6 of moderate income shall be made available at a monthly housing
7 cost that does not exceed 30 percent of 100 percent of area median
8 income with adjustments for household size made in accordance
9 with the adjustment factors on which the moderate -income
10 eligibility limits are based.
11 (4) "Area median income" means area median income as
12 periodically established by the Department of Housing and
13 Community Development pursuant to Section 50093 of the Health
14 and Safety Code. The developer shall provide sufficient legal
15 commitments to ensure continued availability of units for very low
16 or low-income households in accordance with the provisions of
17 this subdivision for 30 years.
18 (5) "Disapprove the housing development project' includes any
19 instance in which a local agency does either of the following:
20 (A) Votes on a proposed housing development project
21 application and the application is disapproved. disapproved,
22 including any required land use approvals or entitlements
23 necessary for the issuance of a building permit.
24 (B) Fails to comply with the time periods specified in
25 subdivision (a) of Section 65950. An extension of time pursuant
26 to Article 5 (commencing with Section 65950) shall be deemed to
27 be an extension of time pursuant to this paragraph.
28 (i) If any city, county, or city and county denies approval or
29 imposes conditions, including design changes, lower -density
30 density, or a reduction of the percentage of a lot that may be
31 occupied by a building or structure under the applicable planning
32 and zoning in force at the time the application is deemed complete
33 pursuant to Section 65943, that -has have a substantial adverse
34 effect on the viability or affordability of a housing development
35 for very low, low-, or moderate -income households, and the denial
36 of the development or the imposition of conditions on the
37 development is the subject of a court action which challenges the
38 denial or the imposition of -ms's conditions, then the burden
39 of proof shall be on the local legislative body to show that its
40 decision is consistent with the findings as described in subdivision
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1 (d) and that the findings are supported by a preponderance of the
2 evidence in the record. For purposes of this section, "lower
3 density" includes any conditions that have the same effect or
4 impact on the ability of the project to provide housing.
5 0) (1) When a proposed housing development project complies
6 with applicable, objective generals plan, zoning,
7 and subdivision standards and criteria, including design review
8 standards, in effect at the time that the housing development
9 project's application is determined to be complete, but the local
10 agency proposes to disapprove the project orto impose a condition
11 that the project be developed at a lower density, the local agency
12 shall base its decision regarding the proposed housing development
13 proj ect upon written findings supported by a preponderance of the
14 evidence on the record that both of the following conditions exist:
15 ( I-)
16 (A) The housing development project would have a specific,
17 adverse impact upon the public health or safety unless the project
18 is disapproved or approved upon the condition that the project be
19 developed at a lower density. As used in this paragraph, a "specific,
20 adverse impact" means a significant, quantifiable, direct, and
21 unavoidable impact, based on objective, identified written public
22 health or safety standards, policies, or conditions as they existed
23 on the date the application was deemed complete.
24 (2)
25 (B) There is no feasible method to satisfactorily mitigate or
26 avoid the adverse impact identified pursuant to paragraph (1), other
27 than the disapproval of the housing development project or the
28 approval of the project upon the condition that it be developed at
29 a lower density.
30 (2) (A) If the local agency considers a proposed housing
31 development project to be inconsistent, not in compliance, or not
32 in conformity with an applicable plan, program, policy, ordinance,
33 standard, requirement, or other similar provision as specified in
34 this subdivision, it shall provide the applicant with written
35 documentation identifying the provision or provisions, and an
36 explanation of the reason or reasons it considers the housing
37 development to be inconsistent, not in compliance, or not in
38 conformity as follows:
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(i) Within 30 days ofthe date that the application for the housing
2
development project is determined to be complete, if the housing
3
development project contains 150 or fewer housing units.
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(ii) Within 60 days of the date that the application for the
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housing development project is determined to be complete, if the
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housing development project contains more than 150 units.
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(B) If the local agency fails to provide the required
8
documentation pursuant to subparagraph (A), the housing
9
development project shall be deemed consistent, compliant, and
10
in conformity with the applicable plan, program, policy, ordinance,
11
standard, requirement, or other similar provision.
12
(3) For purposes of this section, the receipt of a density bonus
13
pursuant to Section 65915 shall not constitute a valid basis on
14
which to find a proposed housing development project is
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inconsistent, not in compliance, or not in conformity, with an
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applicable plan, program, policy, ordinance, standard,
17
requirement, or other similar provision specified in this
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subdivision.
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(4) For purposes of this section, "lower density" includes any
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conditions that have the same effect or impact on the ability ofthe
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project to provide housing.
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(k) (1) (A) The applicant, a person who would be eligible to
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apply for residency in the development or emergency shelter, or
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a housing organization may bring an action to enforce this section.
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If, in any action brought to enforce this section, a court finds that
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either (i) the local agency, in violation of subdivision (d),
.2
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disapproved a housing development project or conditioned its
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approval in a manner rendering it infeasible for the development
29
of an emergency shelter, or housing for very low, low-, or
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moderate -income households, including farmworker housing,
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without making the findings required by this section or without
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making findings supported by a preponderance of the evidence,
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or (ii) the local agency, in violation of subdivision 0), disapproved
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a housing development project complying with applicable,
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objective general plan and zoning standards and criteria, or imposed
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a condition that the project be developed at a lower density, without
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making the findings required by this section or without making
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findings supported by a preponderance of the evidence, the court
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shall issue an order or judgment compelling compliance with this
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section within 60 days, including, but not limited to, an order that
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1 the local agency-appreve take action on the housing development
2 project or emergency shelter. The court -+a4 may issue an order
3 or judgment directing the local agency to approve the housing
4 development project or emergency shelter if the court finds that
5 the local agency acted in bad faith when it disapproved or
6 conditionally approved the housing development or emergency
7 shelter in violation of this section. The court shall retain jurisdiction
8 to ensure that its order or judgment is carried out and shall award
9 reasonable attorney's fees and costs of suit to the plaintiff or
10 petitioner, except under extraordinary circumstances in which the
11 court finds that awarding fees would not further the purposes of
12 this section. For purposes ofthis section, "lower density" includes
13 conditions that have the same effect or impact on the ability ofthe
14 project to provide housing.
15 (B) if the eottft
determine "--` its (i) Upon a determination
16 that the local agency has failed to comply with the order or
17 judgmenthas not beett eaffied out within 60 days, compelling
18 compliance with this section within 60 days issued pursuant to
19 subparagraph (A), the court shall impose fines on a local agency
20 that has violated this section and require the local agency to deposit
21 any fine levied pursuant to this subdivision into a local housing
22 trust fund. The local agency may elect to instead deposit the fine
23 into the Building Homes and Jobs Fund, if Senate Bill 2 of the
24 2017-18 Regular Session is enacted, or otherwise in the Housing
25 Rehabilitation Loan Fund. The fine shall be in aminimum amount
26 often thousand dollars ($10,000) per housing unit in the housing
27 development project on the date the application was deemed
28 complete pursuant to Section 65943. In determining the amount
29 of fine to impose, the court shall consider the local agency's
30 progress in attaining its target allocation of the regional housing
31 need pursuant to Section 65584, 65584 and any prior violations
32 of this
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37 ability to provide basie seffiees to its resideitts. section. Fines shall
38 not be paid out of funds already dedicated to affordable housing,
39 including, but not limited to, Low and Moderate Income Housing
40 Asset Funds, funds dedicated to housing for very low, low-, and
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1 moderate -income households, and federal HOME Investment
2 Partnerships Program and Community Development Block Grant
3 Program funds. The local agency shall commit and expend the
4 money in the local housing trust fund within five years for the sole
5 purpose of financing newly constructed housing units affordable
6 to extremely low, very low, or low-income households. After five
7 years, if the funds have not been expended, the money shall revert
8 to the state and be deposited in the Building Homes and Jobs Fund,
9 if Senate Bill 2 of the 2017-18 Regular Session is enacted, or
10 otherwise in the Housing Rehabilitation Loan Fund, for the sole
11 purpose offinancing newly constructed housing units affordable
12 to extremely low, very low, or low-income households.
13 (ii) If any money derived from a fine imposed pursuant to this
14 subparagraph is deposited in the Housing Rehabilitation Loan
15 Fund, then, notwithstanding Section 50661 ofthe Health and Safety
16 Code, that money shall be available only upon appropriation by
17 the Legislature.
18 (C) 44.e- -If the court determines that its order or judgment has
19 not been carried out within 60 days, the court may issue further
20 orders as provided by law to ensure that the purposes and policies
21 of this section are fulfilled, including, but not limited to, an order
22 to vacate the decision of the local agency and to approve the
23 housing development project, in which case the application forthe
24 housing development project, as proposed by the applicant at the
25 time the local agency took the initial action determined to be in
26 violation of this section, along with any standard conditions
27 determined by the court to be generally imposed by the local
28 agency on similar projects, shall be deemed to be approved unless
29 the applicant consents to a different decision or action by the local
30 agency.
31 (2) For purposes of this subdivision, "housing organization"
32 means atrade or industry group whose local members are primarily
33 engaged in the construction or management of housing units or a
34 nonprofit organization whose mission includes providing or
35 advocating for increased access to housing for low-income
36 households and have filed written or oral comments with the local
37 agency prior to action on the housing development project. A
38 housing organization may only file an action pursuant to this
39 section to challenge the disapproval of a housing development by
40 a local agency. A housing organization shall be entitled to
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reasonable attorney's fees and costs if it is the prevailing party in
2
an action to enforce this section.
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(1) If the court finds that the local agency (1) acted in bad faith
4
when it disapproved or conditionally approved the housing
5
development or emergency shelter in violation of this section and
6
(2) failed to carry out the court's order or judgment within 60 days
7
as described in subdivision (k), the court, in addition to any other
8
remedies provided by this section, shall multiply the fine
9
determined pursuant to subparagraph (B) of paragraph (1) of
10
subdivision (k) by a factor of5. The ittereased fitte shall be paid,
11
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base fitte. five. For purposes of this section, "bad faith" includes,
13
but is not limited to, an action that is frivolous or otherwise entirely
14
without merit.
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(m) Any action brought to enforce the provisions of this section
16
shall be brought pursuant to Section 1094.5 of the Code of Civil
17
Procedure, and the local agency shall prepare and certify the record
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of proceedings in accordance with subdivision (c) of Section 1094.6
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of the Code of Civil Procedure no later than 30 days after the
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petition is served, provided thatthe cost of preparation of the record
21
shall be borne by the local agency, unless the petitioner elects to
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prepare the record as provided in subdivision (n) of this section.
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A petition to enforce the provisions of this section shall be filed
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and served no later than 90 days from the later of (1) the effective
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date of a decision of the local agency imposing conditions on,
26
disapproving, or any other final action on a housing development
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project or (2) the expiration of the time periods specified in
28
subparagraph (B) of paragraph (5) of subdivision (h). Upon entry
29
of the trial court's order, a party may, in order to obtain
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appellate review of the order, file a petition within 20 days after
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service upon it of a written notice of the entry of the order, or
32
within such further time not exceeding an additional 20 days as
33
the trial court may for good cause allow, or may appeal the
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judgment or order of the trial court under Section 904.1 of the
35
Code of Civil Procedure. If the local agency appeals the judgment
36
of the trial court, the local agency shall post a bond, in an amount
37
to be determined by the court, to the benefit of the plaintiff if the
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plaintiff is the project applicant.
39
(n) In any action, the record of the proceedings before the local
40
agency shall be filed as expeditiously as possible and,
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1
notwithstanding Section 1094.6 of the Code of Civil Procedure or
2
subdivision (m) of this section, all or part of the record may be
3
prepared (1) by the petitioner with the petition or petitioner's points
4
and authorities, (2) by the respondent with respondent's points and
5
authorities, (3) after payment of costs by the petitioner, or (4) as
6
otherwise directed by the court. If the expense of preparing the
7
record has been borne by the petitioner and the petitioner is the
8
prevailing party, the expense shall be taxable as costs.
9
(o) if a loettl agettey proposes to de" or redttee the density o
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render the hottsing developmeitt prejeet itifeasible for very lovv,,
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this seetion does or does not applytothe prejeet, and, ifftpplieable,m
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the loettl agettey shall make the findings thaf apply to the prejeeR
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fp)
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(o) This section shall be known, and may be cited, as the
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Housing Accountability Act.
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SEC. 1.5. Section 65589.5 ofthe Government Code is amended
26
to read:
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65589.5. (a) (1) The Legislature finds and declares all of the
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following:
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(A) The lack of housing, including emergency shelters, is a
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critical problem that threatens the economic, environmental, and
32
social quality of life in California
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(B) California housing has become the most expensive in the
35
nation. The excessive cost ofthe state's housing supply is partially
36
caused by activities and policies of many local governments that
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limit the approval of housing, increase the cost of land for housing,
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and require that high fees and exactions be paid by producers of
39
housing.
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f3)
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1 (C) Among the consequences of those actions are discrimination
2 against low-income and minority households, lack of housing to
3 support employment growth, imbalance in jobs and housing,
4 reduced mobility, urban sprawl, excessive commuting, and air
5 quality deterioration.
6 0)
7 (D) Many local governments do not give adequate attention to
8 the economic, environmental, and social costs of decisions that
9 result in disapproval of housing development projects, reduction
10 in density of housing projects, and excessive standards for housing
11 development projects.
12 (2) In enacting the amendments made to this section by the act
13 adding this paragraph, the Legislature further finds and declares
14 the following:
15 (A) California has a housing supply and affordability crisis of
16 historic proportions. The consequences offailing to effectively and
17 aggressively confront this crisis are hurting millions of
18 Californians, robbing future generations of the chance to call
19 California home, stifling economic opportunities for workers and
20 businesses, worsening poverty and homelessness, and undermining
21 the state's environmental and climate objectives.
22 (B) While the causes of this crisis are multiple and complex,
23 the absence of meaningful and effective policy reforms to
24 significantly enhance the approval and supply of housing
25 affordable to Californians of all income levels is a key factor.
26 (C) The crisis has grown so acute in California that supply,
27 demand, and affordability fundamentals are characterized in the
28 negative: underserved demands, constrained supply, and protracted
29 unaffordability.
30 (D) According to reports and data, California has accumulated
31 an unmet housing backlog of nearly 2,000,000 units and must
32 provide for at least 180, 000 new units annually to keep pace with
33 growth through 2025.
34 (E) California's overall homeownership rate is at its lowest
35 level since the 1940s. The state ranks 49th out of the 50 states in
36 homeownership rates as well as in the supply ofhousing per capita.
37 Only half of California's households are able to afford the cost of
38 housing in their local regions.
39 (F) Lack ofsupply and rising costs are compounding inequality
40 and limiting advancement opportunities for many Californians.
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_19— SB 167
1 (G) The majority of California renters, more than 3,000,000
2 households, pay more than 30 percent of their income toward rent
3 and nearly one-third, more than 1, 500, 000 households, pay more
4 than 50 percent of their income toward rent.
5 (H) When Californians have access to safe and affordable
6 housing, they have more money for food and health care; they are
7 less likely to become homeless and in need of
8 government -subsidized services; their children do better in school;
9 and businesses have an easier time recruiting and retaining
10 employees.
11 (I) An additional consequence ofthe state's cumulative housing
12 shortage is a significant increase in greenhouse gas emissions
13 caused by the displacement and redirection ofpopulations to states
14 with greater housing opportunities, particularly working- and
15 middle-class households. California's cumulative housing shortfall
16 therefore has not only national but international environmental
17 consequences.
18 (J) California's housing picture has reached a crisis ofhistoric
19 proportions despite the fact that, for decades, the Legislature has
20 enacted numerous statutes intended to significantly increase the
21 approval, development, and affordability ofhousing for all income
22 levels, including this section.
23 (K) The Legislature's intent in enacting this section in 1982
24 and in expanding its provisions since then was to significantly
25 increase the approval and construction of new housing for all
26 economic segments of California's communities by meaningfully
27 and effectively curbing the capability of local governments to deny,
28 reduce the density for, or render infeasible housing development
29 projects and emergency shelters. That intent has not been fulfilled.
30 (L) It is the policy of the state that this section should be
31 interpreted and implemented in a manner to afford the fullest
32 possible weight to the interest of, and the approval and provision
33 of, housing.
34 (b) It is the policy of the state that a local government not reject
35 or make infeasible housing -developments development projects,
36 including emergency shelters, that contribute to meeting the need
37 determined pursuant to this article without a thorough analysis of
38 the economic, social, and environmental effects of the action and
39 without complying with subdivision (d).
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1 (c) The Legislature also recognizes that premature and
2 unnecessary development of agricultural lands for urban uses
3 continues to have adverse effects on the availability of those lands
4 for food and fiber production and on the economy of the state.
5 Furthermore, it is the policy of the state that development should
6 be guided away from prime agricultural lands; therefore, in
7 implementing this section, local jurisdictions should encourage,
8 to the maximum extent practicable, in filling existing urban areas.
9 (d) A local agency shall not disapprove a housing development
10 project, including farmworker housing as defined in subdivision
11 (h) of Section 50199.7 of the Health and Safety Code, for very
12 low, low-, or moderate -income households, or an emergency
13 shelter, or condition approval in a manner that renders the housing
14 development project infeasible for development for the use of very
15 low, low-, or moderate -income households, or an emergency
16 shelter, including through the use of design review standards,
17 unless it makes written findings, based uponsubstaittial a
18 preponderance of the evidence in the record, as to one of the
19 following:
20 (1) The jurisdiction has adopted ahousing element pursuant to
21 this article that has been revised in accordance with Section 65588,
22 is in substantial compliance with this article, and the jurisdiction
23 has met or exceeded its share of the regional housing need
24 allocation pursuant to Section 65584 for the planning period for
25 the income category proposed forthe housing development project,
26 provided that any disapproval or conditional approval shall not be
27 based on any of the reasons prohibited by Section 65008. If the
28 housing development project includes a mix of income categories,
29 and the jurisdiction has not met or exceeded its share of the regional
30 housing need for one or more of those categories, then this
31 paragraph shall not be used to disapprove or conditionally approve
32 the housing development project. The share of the regional housing
33 need met by the jurisdiction shall be calculated consistently with
34 the forms and definitions that may be adopted by the Department
35 of Housing and Community Development pursuant to Section
36 65400. In the case of an emergency shelter, the jurisdiction shall
37 have met or exceeded the need for emergency shelter, as identified
38 pursuant to paragraph (7) of subdivision (a) of Section 65583. Any
39 disapproval or conditional approval pursuant to this paragraph
40 shall be in accordance with applicable law, rule, or standards.
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—21— SB 167
(2) The housing development project or emergency shelter as
proposed would have a specific, adverse impact upon the public
health or safety, and there is no feasible method to satisfactorily
mitigate or avoid the specific adverse impact without rendering
the development unaffordable to low- and moderate -income
households or rendering the development of the emergency shelter
financially infeasible. As used in this paragraph, a "specific,
adverse impact" means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed
on the date the application was deemed complete. Inconsistency
with the zoning ordinance or general plan land use designation
shall not constitute a specific, adverse impact upon the public
health or safety.
(3) The denial of the housing development projector imposition
of conditions is required in order to comply with specific state or
federal law, and there is no feasible method to comply without
rendering the development unaffordable to low- and
moderate -income households or rendering the development of the
emergency shelter financially infeasible.
(4) The housing development project or emergency shelter is
proposed on land zoned for agriculture or resource preservation
that is surrounded on at least two sides by land being used for
agricultural or resource preservation purposes, or which does not
have adequate water or wastewater facilities to serve the project.
(5) The housing development project or emergency shelter is
inconsistent with both the jurisdiction's zoning ordinance and
general plan land use designation as specified in any element of
the general plan as it existed on the date the application was
deemed complete, and the jurisdiction has adopted a revised
housing element in accordance with Section 65588 that is in
substantial compliance with this article. For purposes of this
section, a change to the zoning ordinance or general plan land
use designation subsequent to the date the application was deemed
complete shall not constitute a valid basis to disapprove or
condition approval of the housing development project or
emergency shelter.
(A) This paragraph cannot be utilized to disapprove or
conditionally approve ahousing development project if the housing
development project is proposed on a site that is identified as
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1 suitable or available for very low, low-, or moderate -income
2 households in the jurisdiction's housing element, and consistent
3 with the density specified in the housing element, even though it
4 is inconsistent with both the jurisdiction's zoning ordinance and
5 general plan land use designation.
6 (B) If the local agency has failed to identify in the inventory of
7 land in its housing element sites that can be developed for housing
8 within the planning period and are sufficient to provide for the
9 jurisdiction's share of the regional housing need for all income
10 levels pursuant to Section 65584, then this paragraph shall not be
11 utilized to disapprove or conditionally approve a housing
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development project proposed for asite designated in any element
of the general plan for residential uses or designated in any element
of the general plan for commercial uses if residential uses are
permitted or conditionally permitted within commercial
designations. In any action in court, the burden of proof shall be
on the local agency to show that its housing element does identify
adequate sites with appropriate zoning and development standards
and with services and facilities to accommodate the local agency's
share of the regional housing need for the very low and low itteome
low,
o -
low, low-, and moderate -income categories.
(C) If the local agency has failed to identify a zone or zones
where emergency shelters are allowed as a permitted use without
a conditional use or other discretionary permit, has failed to
demonstrate that the identified zone or zones include sufficient
capacity to accommodate the need for emergency shelter identified
in paragraph (7) of subdivision (a) of Section 65583, or has failed
to demonstrate that the identified zone or zones can accommodate
at least one emergency shelter, as required by paragraph (4) of
subdivision (a) of Section 65583, then this paragraph shall not be
utilized to disapprove or conditionally approve an emergency
shelter proposed for a site designated in any element of the general
plan for industrial, commercial, or multifamily residential uses. In
any action in court, the burden of proof shall be on the local agency
to show that its housing element does satisfy the requirements of
paragraph (4) of subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local
agency from complying with the congestion management program
required by Chapter 2.6 (commencing with Section 65088) of
Division 1 of Title 7 or the California Coastal Act of 1976
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1 (Division 20 (commencing with Section 30000) of the Public
2 Resources Code). Neither shall anything in this section be
3 construed to relieve the local agency from making one or more of
4 the findings required pursuant to Section 21081 of the Public
5 Resources Code or otherwise complying with the California
6 Environmental Quality Act (Division 13 (commencing with Section
7 21000) of the Public Resources Code).
8 (f) (1) Nothing in this section shall be construed to prohibit a
9 local agency from requiring the housing development project to
10 comply with objective, quantifiable, written development standards,
11 conditions, and policies appropriate to, and consistent with, meeting
12 the jurisdiction's share of the regional housing need pursuant to
13 Section 65584. However, the development standards, conditions,
14 and policies shall be applied to facilitate and accommodate
15 development at the density permitted on the site and proposed by
16 the development.
17 (2) Nothing in this section shall be construed to prohibit a local
18 agency from requiring an emergency shelter project to comply
19 with objective, quantifiable, written development standards,
20 conditions, and policies that are consistent with paragraph (4) of
21 subdivision (a) of Section 65583 and appropriate to, and consistent
22 with, meeting the jurisdiction's need for emergency shelter, as
23 identified pursuant to paragraph (7) of subdivision (a) of Section
24 65583. However, the development standards, conditions, and
25 policies shall be applied by the local agency to facilitate and
26 accommodate the development of the emergency shelter project.
27 (3) This section does not prohibit a local agency from imposing
28 fees and other exactions otherwise authorized by law that are
29 essential to provide necessary public services and facilities to the
30 housing development project or emergency shelter.
31 (4) For purposes ofthis section, a housing development project
32 or emergency shelter shall be deemed consistent, compliant, and
33 in conformity with an applicable plan, program, policy, ordinance,
34 standard, requirement, or other similar provision if there is
35 substantial evidence that would allow a reasonable person to
36 conclude that the housing development project or emergency
37 shelter is consistent, compliant, or in conformity.
38 (g) This section shall be applicable to charter cities because the
39 Legislature finds that the lack of housing, including emergency
40 shelter, is a critical statewide problem.
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1 (h) The following definitions apply for the purposes of this
2 section:
3 (1) "Feasible" means capable of being accomplished in a
4 successful manner within a reasonable period of time, taking into
5 account economic, environmental, social, and technological factors.
6 (2) "Housing development project' means a use consisting of
7 any of the following:
8 (A) Residential units only.
9 (B) Mixed-use developments consisting of residential and
10 nonresidential uses =-- --de=ed- tionr-sideittial uses ___ limited to
11 neighbofhood eommereia4 uses tmd to 4te first floor of buildings
12 t1taf afe two or more stories. As used itt this pafagraph,
13
14 stores 4taf ftimish goods tmd sefviees primarily to residents ofthe
15 neighbofhood. with at least two-thirds of the square footage
16 designated for residential use.
17 (C) Transitional housing or supportive housing.
18 (3) "Housing for very low, low-, or moderate -income
19 households" means that either (A) at least 20 percent of the total
20 units shall be sold or rented to lower income households, as defined
21 in Section 50079.5 of the Health and Safety Code, or (B) 100
22 percent of the units shall be sold or rented to persons and families
23 of moderate income as defined in Section 50093 of the Health and
24 Safety Code, or persons and families of middle income, as defined
25 in Section 65008 of this code. Housing units targeted for lower
26 income households shall be made available at a monthly housing
27 cost that does not exceed 30 percent of 60 percent of area median
28 income with adjustments for household size made in accordance
29 with the adjustment factors on which the lower income eligibility
30 limits are based. Housing units targeted for persons and families
31 of moderate income shall be made available at a monthly housing
32 cost that does not exceed 30 percent of 100 percent of area median
33 income with adjustments for household size made in accordance
34 with the adjustment factors on which the moderate -income
35 eligibility limits are based.
36 (4) "Area median income" means area median income as
37 periodically established by the Department of Housing and
38 Community Development pursuant to Section 50093 of the Health
39 and Safety Code. The developer shall provide sufficient legal
40 commitments to ensure continued availability of units for very low
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SB 167
1 or low-income households in accordance with the provisions of
2 this subdivision for 30 years.
3 (5) "Disapprove the housing development project" includes any
4 instance in which a local agency does either of the following:
5 (A) Votes on a proposed housing development project
6 application and the application is disapproved. disapproved,
7 including any required land use approvals or entitlements
8 necessary for the issuance of a building permit.
9 (B) Fails to comply with the time periods specified in
10 subdivision (a) of Section 65950. An extension of time pursuant
11 to Article 5 (commencing with Section 65950) shall be deemed to
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be an extension of time pursuant to this paragraph.
(i) If any city, county, or city and county denies approval or
imposes -gross conditions, including design changes,
__a___.:_._ of allowable
ll____L,_ densities __ lower density, or a reduction
of the percentage of a lot that may be occupied by a building or
structure under the applicable planning and zoning in force at the
time the application is deemed complete pursuant to Section 65943,
that have a substantial adverse effect on the viability or
affordability of a housing development for very low, low-, or
moderate -income households, and the denial of the development
or the imposition of -�� conditions on the development is
the subject of a court action which challenges the denial, denial
or the imposition of conditions, then the burden of proof shall be
on the local legislative body to show that its decision is consistent
with the findings as described in subdivision (d) and that the
findings are supported bysubstaittial a preponderance of the
evidence in the record. For purposes of this section, "lower
density" includes any conditions that have the same effect or
impact on the ability of the project to provide housing.
0) (1) When a proposed housing development project complies
with applicable, objective generals plan, zoning,
and subdivision standards and criteria, including design review
standards, in effect at the time that the housing development
project's application is determined to be complete, but the local
agency proposes to disapprove the project or tom
the impose a condition that the project be developed at a lower
density, the local agency shall base its decision regarding the
proposed housing development project upon written findings
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1 supported bysubstatitial a preponderance of the evidence on the
2 record that both of the following conditions exist:
3 ( I-)
4 (A) The housing development project would have a specific,
5 adverse impact upon the public health or safety unless the project
6 is disapproved or approved upon the condition that the project be
7 developed at a lower density. As used in this paragraph, a "specific,
8 adverse impact' means a significant, quantifiable, direct, and
9 unavoidable impact, based on objective, identified written public
10 health or safety standards, policies, or conditions as they existed
11 on the date the application was deemed complete.
12 (2)
13 (B) There is no feasible method to satisfactorily mitigate or
14 avoid the adverse impact identified pursuant to paragraph (1), other
15 than the disapproval of the housing development project or the
16 approval of the project upon the condition that it be developed at
17 a lower density.
18 (2) (A) If the local agency considers a proposed housing
19 development project to be inconsistent, not in compliance, or not
20 in conformity with an applicable plan, program, policy, ordinance,
21 standard, requirement, or other similar provision as specified in
22 this subdivision, it shall provide the applicant with written
23 documentation identifying the provision or provisions, and an
24 explanation of the reason or reasons it considers the housing
25 development to be inconsistent, not in compliance, or not in
26 conformity as follows:
27 (i) Within 30 days ofthe date that the application for the housing
28 development project is determined to be complete, if the housing
29 development project contains 150 or fewer housing units.
30 (ii) Within 60 days of the date that the application for the
31 housing development project is determined to be complete, if the
32 housing development project contains more than 150 units.
33 (B) If the local agency fails to provide the required
34 documentation pursuant to subparagraph (A), the housing
35 development project shall be deemed consistent, compliant, and
36 in conformity with the applicable plan, program, policy, ordinance,
37 standard, requirement, or other similar provision.
38 (3) For purposes of this section, the receipt of a density bonus
39 pursuant to Section 65915 shall not constitute a valid basis on
40 which to find a proposed housing development project is
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1 inconsistent, not in compliance, or not in conformity, with an
2 applicable plan, program, policy, ordinance, standard,
3 requirement, or other similar provision specified in this
4 subdivision.
5 (4) For purposes of this section, "lower density" includes any
6 conditions that have the same effect or impact on the ability ofthe
7 project to provide housing.
8 (k) (1) (A) The applicant, a person who would be eligible to
9 apply for residency in the development or emergency shelter, or
10 a housing organization may bring an action to enforce this section.
11 If, in any action brought to enforce this section, a court finds that
12 either (i) the local ageney agency, in violation of subdivision (d),
13 disapproved a housing development project or conditioned its
14 approval in a manner rendering it infeasible for the development
15 of an emergency shelter, or housing for very low, low-, or
16 moderate -income households, including farmworker housing,
17 without making the findings required by this section or without
18 making --est findings supported by -tea a
19 preponderance ofthe evidence, or (ii) the local agency, in violation
20 of subdivision O, disapproved a housing development project
21 complying with applicable, objective general plan and zoning
22 standards and criteria, or imposed a condition that the project be
23 developed at a lower density, without making the findings required
24 by this section or without making findings supported by a
25 preponderance of the evidence, the court shall issue an order or
26 judgment compelling compliance with this section within 60 days,
27 including, but not limited to, an order that the local agency take
28 action on the housing development project or emergency shelter.
29 The court may issue an order or judgment directing the local
30 agency to approve the housing development project or emergency
31 shelter if the court finds that the local agency acted in bad faith
32 when it disapproved or conditionally approved the housing
33 development or emergency shelter in violation of this section. The
34 court shall retain jurisdiction to ensure that its order or judgment
35 is carried out and shall award reasonable attorney's fees and costs
36 of suit to the plaintiff or petitionef who proposed the hottsin
37 developmeitt or emergettey sheltef, petitioner, except under
38 extraordinary circumstances in which the courtfinds that awarding
39 fees would not further the purposes of this section. if the eourt
40 determines thaf its order or judgment has not beett eaffied out
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1 within 60 days, the For purposes of this section, "lower density»
2 includes conditions that have the same effect or impact on the
3 ability of the project to provide housing.
4 (B) (i) Upon a determination that the local agency has failed
5 to comply with the order or judgment compelling compliance with
6 this section within 60 days issued pursuant to subparagraph (A),
7 the court shall impose fines on a local agency that has violated
8 this section and require the local agency to deposit any fine levied
9 pursuant to this subdivision into a local housing trust fund. The
10 local agency may elect to instead deposit the fine into the Building
11 Homes and Jobs Fund, if Senate Bill 2 of the 2017-18 Regular
12 Session is enacted, or otherwise in the Housing Rehabilitation
13 Loan Fund. Thefine shall be in a minimum amount often thousand
14 dollars ($10,000) per housing unit in the housing development
15 project on the date the application was deemed complete pursuant
16 to Section 65943. In determining the amount offine to impose, the
17 court shall consider the local agency's progress in attaining its
18 target allocation ofthe regional housing need pursuant to Section
19 65584 and any prior violations of this section. Fines shall not be
20 paid out of funds already dedicated to affordable housing,
21 including, but not limited to, Low and Moderate Income Housing
22 Asset Funds, funds dedicated to housing for very low, low-, and
23 moderate -income households, and federal HOME Investment
24 Partnerships Program and Community Development Block Grant
25 Program funds. The local agency shall commit and expend the
26 money in the local housing trust fund within five years for the sole
27 purpose offinancing newly constructed housing units affordable
28 to extremely low, very low, or low-income households. After five
29 years, if the funds have not been expended, the money shall revert
30 to the state and be deposited in the Building Homes and Jobs Fund,
31 if Senate Bill 2 of the 2017-18 Regular Session is enacted, or
32 otherwise in the Housing Rehabilitation Loan Fund, for the sole
33 purpose offinancing newly constructed housing units affordable
34 to extremely low, very low, or low-income households.
35 (ii) If any money derived from a fine imposed pursuant to this
36 subparagraph is deposited in the Housing Rehabilitation Loan
37 Fund, then, notwithstanding Section 50661 ofthe Health and Safety
38 Code, that money shall be available only upon appropriation by
39 the Legislature.
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SB 167
1 (C) If the court determines that its order or judgment has not
2 been carried out within 60 days, the court may issue further orders
3 as provided by law to ensure that the purposes and policies of this
4 section are fulfilled, including, but not limited to, an order to vacate
5 the decision of the local ageney, agency and to approve the housing
6 developmentproject, in which case the application for the housing
7 development project, as_.� proposed by the applicant at
8 the time the local agency took the initial action determined to be
9 in violation of this section, along with any standard conditions
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determined by the court to be generally imposed by the local
agency on similar projects, shall be deemed to be approved unless
the applicant consents to a different decision or action by the local
agency.
(2) For purposes of this subdivision, "housing organization"
means atrade or industry group whose local members are primarily
engaged in the construction or management of housing units or a
nonprofit organization whose mission includes providing or
advocating for increased access to housing for low-income
households and have filed written or oral comments with the local
agency prior to action on the housing development project. A
housing organization may only file an action pursuant to this
section to challenge the disapproval of a housing development by
a local agency. A housing organization shall be entitled to
reasonable attorney's fees and costs if it is the prevailing party in
an action to enforce this section.
(1) If the court finds that the local agency (1) acted in bad faith
when it disapproved or conditionally approved the housing
development or emergency shelter in violation of this section and
(2) failed to carry out the court's order or judgment within 60 days
as described in subdivision (k), the court, in addition to any other
remedies provided by this section, may impose fines upott the loettl
eommit the mottey itt the tmst ftind within five years for the sole
purpose of fitianeing newly eonstrueted hottsing units affordable
shall
multiply the fine determined pursuant to subparagraph (B) of
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1 paragraph (1) of subdivision (k) by a factor of five. For purposes
2 of this section, "bad faith"-' -� includes, but is not limited
3 to, an action that is frivolous or otherwise entirely without merit.
4 (m) Any action brought to enforce the provisions of this section
5 shall be brought pursuant to Section 1094.5 of the Code of Civil
6 Procedure, and the local agency shall prepare and certify the record
7 of proceedings in accordance with subdivision (c) of Section 1094.6
8 of the Code of Civil Procedure no later than 30 days after the
9 petition is served, provided thatthe cost of preparation of the record
10 shall be borne by the local-agenet'- agency, unless the petitioner
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elects to prepare the record as provided in subdivision (n) of this
section. A petition to enforce the provisions of this section shall
be filed and served no later than 90 days from the later of (1) the
effective date ofa decision ofthe local agency imposing conditions
on, disapproving, or any other final action on a housing
development project or (2) the expiration of the time periods
specified in subparagraph (B) ofparagraph (5) of subdivision (h).
Upon entry of the trial court's order, a party may, in order
to obtain appellate review of the order, file a petition within 20
days after service upon it of a written notice of the entry of the
order, or within such further time not exceeding an additional 20
days as the trial court may for good cause allow. allow, or may
appeal the judgment or order of the trial court under Section 904.1
of the Code of Civil Procedure. If the local agency appeals the
judgment of the trial court, the local agency shall post a bond, in
an amount to be determined by the court, to the benefit of the
plaintiff if the plaintiff is the project applicant.
(n) In any action, the record of the proceedings before the local
agency shall be filed as expeditiously as possible and,
notwithstanding Section 1094.6 of the Code of Civil Procedure or
subdivision (m) of this section, all or part of the record may be
prepared (1) by the petitioner with the petition or petitioner's points
and authorities, (2) by the respondent with respondent's points and
authorities, (3) after payment of costs by the petitioner, or (4) as
otherwise directed by the court. If the expense of preparing the
record has been borne by the petitioner and the petitioner is the
prevailing party, the expense shall be taxable as costs.
(o) This section shall be known, and may be cited, as the
Housing Accountability Act.
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SEC. 2. Section 1.5 of this bill incorporates amendments to
Section 65589.5 of the Government Code proposed by both this
bill and Assembly Bill 1515. That section shall only become
operative if (1) both bills are enacted and become effective on or
before January 1, 2018, (2) each bill amends Section 65589.5 of
the Government Code, and (3) this bill is enacted after -Assembly
Bill 1515, in which case Section I of this bill shall not become
operative.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 ofArticle=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 ofservice mandated by this act, within the meaning of Section
17556 of the Government Code.
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