HomeMy WebLinkAboutStaff Report 3.G 06/06/2011Z FF
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DATE: ,tune 6, 2011
TO: Honorable Mayor and Members of the City Council
FROM: John C. Brown, City Manager
SUBJECT: Resolution Opposing Assembly Bill 1220, (AB 1220), Which Would Expand to
Five Years the Statute of Limitations for Certain Challenges to Housing Elements,
Ordinances, and Programs.
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolution opposing AB 1220,
Which Would Expand to Five Years the Statute of Limitations for Certain Challenges to Housing
Elements, Ordinances, and Programs.
DISCUSSION
AB 1220 (Alejo) would expand to five years the statute of limitations to challenge the adoption
of a housing element or a number of related ordinances. By doing so, it is anticipated this would
encourage a broad array of lawsuits against citiy and county housing policies and enactments
when cities and counties can ill afford the expense during these economic times. It will also
leave local agencies, businesses and developers unfairly open to uncertainty long after decisions
have been made.
This bill is opposed by the League of California Cities, CSAC, and the Regional Council of
Rural Counties, among others. As of May 31, 2011, the hearing on this bill was cancelled by the
author and has not been rescheduled.
ATTACHMENTS
1. Resolution
2. Assembly Bill 1220 (as amended April 25, 2011)
Agenda Review:
City Attorney
Finance Director
City Manager
ATTACHMENT 1
RESOLUTION OPPOSING ASSEMBLY BILL 1220, (AB 1220), WHICH
WOULD EXPAND TO FIVE YEARS THE STATUTE OF LIMITATIONS
FOR CERTAIN CHALLENGES TO HOUSING ELEMENT'S,
ORDINANCES, AND PROGRAMS
WHEREAS, 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 certain requirements are met; and
WHEREAS, when 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 of intent to file said action is filed within
the one year period or when the legislative body takes a final action in response to the notice,
whichever occurs first; and
WHEREAS, AB 1220 would authorize the notice to be filed anytime within 5 years after
a specified action pursuant to existing law, and would declare the intent of the Legislature that its
provisions modify a specified court opinion; and
WHEREAS, AB 1220 would also provide that in a 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 protections granted to a tentative map application or a developer,
as prescribed; and
WHEREAS, AB 1220 would also 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.
NOW, THEREFORE, BE IT RESOLVED THAT the Petaluma City Council does hereby
oppose AB 1220.
Aaz o 2--
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, 199.1, 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:
1 SECTION 1. It is the intent of the Legislature in enacting
2 Section 2 of this act to modify the court's opinion in Urban Habitat
3 Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, with
4 respect to the interpretation of Section 65009 of the Government
5 Code.
6 SEC. 2. Section 65009 of the Government Code is amended
7 to read:
8 65009. (a) (1) The Legislature finds and declares that there
9 currently is a housing crisis in California and it is essential to
10 reduce delays and restraints upon expeditiously completing housing
11 projects.
12 (2) The Legislature further finds and declares that a legal action
13 or proceeding challenging a decision of a city, county, or city and
14 county has a chilling effect on the confidence with which property
15 owners and local governments can proceed with projects. Legal
16 actions or proceedings filed to attack, review, set aside, void, or
17 annul a decision of a city, county, or city and county pursuant to
18 this division, including, but not limited to, the implementation of
19 general plan goals and policies that provide incentives for
20 affordable housing, open -space and recreational opportunities, and
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1 other related public benefits, can prevent the completion of needed
2 developments even though the projects have received required
3 governmental approvals.
4 (3) The purpose of this section is to provide certainty for
5 property owners and local governments regarding decisions made
6 pursuant to this division.
7 (b) (1) In an action or proceeding to attack, review, set aside,
8 void, or annul a finding, determination, or decision of a public
9 agency made pursuant to this title at a properly noticed public
10 hearing, the issues raised shall be limited to those raised in the
11 public hearing or in written correspondence delivered to the public
12 agency prior to, or at, the public hearing, except where the court
13 finds either of the following:
14 (A) The issue could not have been raised at the public hearing
15 by persons exercising reasonable diligence.
16 (B) The body conducting the public hearing prevented the issue
17 from being raised at the public hearing.
18 (2) if a public agency desires the provisions of this subdivision
19 to apply to a matter, it shall include in any public notice issued
20 pursuant to this title a notice substantially stating all of the
21 following: "if you challenge the (nature of the proposed action)
22 in court, you may be limited to raising only those issues you or
23 someone else raised at the public hearing described in this notice,
24 or in written correspondence delivered to the (public entity
25 conducting the hearing) at, or prior to, the public hearing"
26 (3) The application of this subdivision to causes of action
27 brought pursuant to subdivision (d) applies only to the final. action
28 taken in response to the notice to the city or clerk of the board of
29 supervisors. If no final action is taken, then the issue raised in the
30 cause of action brought pursuant to subdivision (d) shall be limited
31 to those matters presented at a properly noticed public hearing or
32 to those matters specified in the notice given to the city or clerk
33 of the board of supervisors pursuant to subdivision (d), or both.
34 (c) (1) Except as provided in subdivision (d), no action or
35 proceeding shall be maintained in any of the following cases by
36 any person unless the action or proceeding is commenced and
37 service is made on the legislative body within 90 days after the
38 legislative body's decision:
39 (A) To attack, review, set aside, void, or annul the decision of
40 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 ahousing 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, w `hott`'i`" 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 pen applications for
appropriate codes and standards compliance, prior to the issuance
of building permits and other related pen for residential housing
for that city, county, or city and county.
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1 (2) Suspend the authority of the city, county, or city and county,
2 pursuant to Chapter 4 (commencing with Section 65800) to grant
3 any and all categories of zoning changes, variances, or both.
4 (3) Suspend the authority of the city, county, or city and county,
5 pursuant to Division 2 (commencing with Section 66410), to grant
6 subdivision map approvals for any and all categories of subdivision
7 map approvals.
8 (4) Mandate the approval of all applications for building permits,
9 or other related construction permits, for residential housing where
10 a final subdivision map, parcel map, or plot plan has been approved
11 for the project, where the approval will not impact on the ability
12 of the city, county, or city and county to properly adopt and
13 implement an adequate housing element, and where the permit
14 application conforms to all code requirements and other applicable
15 provisions of law except those zoning laws held to be invalid by
16 the final court order, and changes to the zoning ordinances adopted
17 after such final court order which were enacted for the purpose of
18 preventing the construction of a specific residential development.
19 (5) Mandate the approval of any or all final subdivision maps
20 for residential housing projects which have previously received a
21 tentative map approval from the city, county, or city and county
22 pursuant to Division 2 (commencing with Section 66410) when
23 the final map conforms to the approved tentative map, the tentative
24 map has not expired, and where approval will not impact on the
25 ability of the city, county, or city and county to properly adopt and
26 implement an adequate housing element.
27 (6) Mandate that notwithstanding the provisions of Sections
28 66473.5 and 66474, any tentative subdivision map for a residential
29 housing project shall be approved if all of the following
30 requirements are met:
31 (A) The approval of the map will not significantly impair the
32 ability of the city, county, or city and county to adopt and
33 implement those elements or portions thereof of the general plan
34 which have been held to be inadequate.
35 (B) The map complies with all of the provisions of Division 2
36 (commencing with Section 66410), except those parts which would
37 require disapproval of the project due to the inadequacy of the
38 general plan.
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AB 1220 — ,,8
1 (C) The approval of the reap will not affect the ability of the
2' city, county, or city and.county to adopt and implement an•adequate
3 housing element.
4 (D) The map is consistent with'the portions of the',general plan.
5 not found inadequate and the proposed revisions, if applicable, to
6 the part°of the plan held inadequate.
7 (b) Any order or judgment of a court which includes the
8 remedies described in paragraphs .(1), (2), or (3) of subdivision (a) •
9 shall exclude from the operation of that order or judgment any
10 action program, or project re quired by.Taw to be consistent with
11 a general or specific plan if the court finds that the :approval or.
12 undertaking�,oftheaetion, pogr-am,or'project complies with'both
13 of the following requirements;
14 (1) That it will not significantly impair the ability of the city,
15 county or city and county to adopt or amend all or part of the
16 applicable . plan as may be:necessary to make the plan substantially
17 comply with the requirements of Article '5 (commencing with
18 Section - 6530Q) in the 'case of a general plan, or, Article 8
19 (commencing with Section 6545.0) in the case of a specific plan.
20 (2) That it is °consistent with those" portions of the, plan
21 challenged in the action or proceeding and found by the court to
22 substantially comply with applicable provisions of law.
23 The party seeking exclusion from any-: or judgment of a.
24 court pursuant to this subdivision shall have the burden'of showing
25 that the action, program, or pr6ject'°6oriplies with paragraphs (1)
26 and (2)•
27 (c) Notwithstanding Section 65754.4 or subdivisions (a) and
28 (b), in any actiow proceeding .'brought. pursuant to subdivision
29 (d) of Section 65009, no remedy pursuant to this section or
30 injunction pursuant to Section 65754:5 shall abrogate, 'impair, 'or
31 otherwise interfere with the full exercise of the rights and
32 protections granted to (1) an applicant for a tentative map pursuant
33 to Section 66474.2, or (2) a.developer °pursuant to Sections 65866
34 and 66498.1
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