Attachment 37/19/2017
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LEGISLATIVE INEORMATION
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GOVERNMENT CODE - GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] (Heading of Title 7 amended by Stats. 1974, Ch. 1536. )
DIVISION 1. PLANNING AND ZONING [65000 - 66103] (Heading of Division 1 added by Stats. 1974, Ch. 1536. )
CHAPTER 3. Local Planning [65100 - 65763] ( Chapter 3 repealed and added by Stats. 1965, Ch. 1880. )
ARTICLE 10.6. Housing Elements [65580 - 65589.8] (Article 10.6 added by Stats. 1980, Ch. 1143. )
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65589.5. (a) The Legislature finds and declares all of the following:
(1) The lack of housing, including emergency shelters, is a critical problem that threatens the economic,
environmental, and social quality of life in California.
(2) California housing has become the most expensive in the nation. The excessive cost of the state's housing
supply is partially caused by activities and policies of many local governments that limit the approval of housing,
increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(3) Among the consequences of those actions are discrimination against low-income and minority households, lack
of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl,
excessive commuting, and air quality deterioration.
(4) Many local governments do not give adequate attention to the economic, environmental, and social costs of
decisions that result in disapproval of housing projects, reduction in density of housing projects, and excessive
standards for housing projects.
(b) It is the policy of the state that a local government not reject or make infeasible housing developments,
including emergency shelters, that contribute to meeting the need determined pursuant to this article without a
thorough 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 project 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 substantial evidence in
the record, as to one of the following:
(1) The jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with
Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of
the regional housing need allocation pursuant to Section 65584 for the planning period for the income category
proposed for the housing development project, provided that any disapproval or conditional approval shall not be
based on any of the reasons prohibited by Section 65008. If the housing development project includes a mix of
income categories, and the jurisdiction has not met or exceeded its share of the regional housing need for one or
more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the 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
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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 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 project or 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 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 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.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the
development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate -
income households in the jurisdiction's housing element, and consistent with the density specified in the housing
element, even though it is inconsistent with both the jurisdiction's zoning ordinance and general plan land use
designation.
(B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be
developed for housing within the planning period and are sufficient to provide for the jurisdiction's share of the
regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to
disapprove or conditionally approve a housing development project proposed for a site 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-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 (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 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 with objective, quantifiable, written development standards, conditions, and policies that are consistent
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with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the
jurisdiction's need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section
65583. However, the development standards, conditions, and policies shall be applied by the local agency to
facilitate and accommodate the development of the emergency shelter project.
(3) This section does not prohibit a local agency from imposing fees and other exactions otherwise authorized by
law that are essential to provide necessary public services and facilities to the development project or emergency
shelter.
(g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including
emergency shelter, is a critical statewide problem.
(h) The following definitions apply for the purposes of this section:
(1) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time,
taking into account economic, environmental, social, and technological factors.
(2) "Housing development project" means a use consisting of any of the following:
(A) Residential units only.
(B) Mixed -use developments consisting of residential and nonresidential uses in which nonresidential uses are
limited to neighborhood commercial uses and to the first floor of buildings that are two or more stories. As used in
this paragraph, "neighborhood commercial" means small-scale general or specialty stores that furnish goods and
services primarily to residents of the neighborhood.
(C) Transitional housing or supportive housing.
(3) "Housing for very low, low-, or moderate -income households" means that either (A) at least 20 percent of the
total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and
Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as
defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in
Section 65008 of this code. Housing units targeted for lower income households shall be made available at a
monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for
household size made in accordance with the adjustment factors on which the lower income eligibility limits are
based. Housing units targeted for persons and families of moderate income shall be made available at a monthly
housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for
household size made in accordance with the adjustment factors on which the moderate -income eligibility limits are
based.
(4) "Area median income" means area median income as periodically established by the Department of Housing
and Community Development pursuant to Section 50093 of the Health and Safety Code. The developer shall
provide sufficient legal commitments to ensure continued availability of units for very low or low-income households
in accordance with the provisions of this subdivision for 30 years.
(5) "Disapprove the development project" includes any instance in which a local agency does either of the
following:
(A) Votes on a proposed housing development project application and the application is disapproved.
(B) Fails to comply with the time periods specified in subdivision (a) of Section 65950. An extension of time
pursuant to Article 5 (commencing with Section 65950) shall be deemed to be an extension of time pursuant to this
paragraph.
(i) If any city, county, or city and county denies approval or imposes restrictions, including design changes, a
reduction of allowable densities or 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 restrictions on the
development is the subject of a court action which challenges the denial, 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 by substantial evidence in the record.
(j) When a proposed housing development project complies with applicable, objective general plan and zoning
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 to
approve it upon the 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 supported by substantial
evidence on the record that both of the following conditions exist:
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(1) The housing development project would have a specific, adverse impact upon the public health or safety unless
the project is disapproved or approved upon the condition that the project be developed at a lower density. 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.
(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to
paragraph (1), other than the disapproval of the housing development project or the approval of the project upon
the condition that it be developed at a lower density.
(k) (1) The applicant, a person who would be eligible to apply for residency in the development or emergency
shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce
this section, a court finds that the local agency disapproved a project or conditioned its approval in a manner
rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate -
income households, including farmworker housing, without making the findings required by this section or without
making sufficient findings supported by substantial evidence, the court shall issue an order or judgment compelling
compliance with this section within 60 days, including, but not limited to, an order that the local agency take action
on the development project or emergency shelter. The court shall retain jurisdiction to ensure that its order or
judgment is carried out and shall award reasonable attorney's fees and costs of suit to the plaintiff or petitioner
who proposed the housing development or emergency shelter, except under extraordinary circumstances in which
the court finds that awarding fees would not further the purposes of this section. If the court determines that its
order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law
to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate
the decision of the local agency, in which case the application for the project, as constituted at the time the local
agency took the initial action determined to be in violation of this section, along with any standard conditions
determined by the court to be generally imposed by the local agency on similar projects, shall be deemed approved
unless the applicant consents to a different decision or action by the local agency.
(2) For purposes of this subdivision, "housing organization" means a trade 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 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.
(I) 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 upon the local agency that the local agency shall be required to deposit into a
housing trust fund. Fines shall not be paid from funds that are already dedicated for affordable housing, including,
but not limited to, redevelopment or low- and moderate -income housing funds and federal HOME and CDBG funds.
The local agency shall commit the money in the trust fund within five years for the sole purpose of financing newly
constructed housing units affordable to extremely low, very low, or low-income households. For purposes of this
section, "bad faith" shall mean an action that is frivolous or otherwise entirely without merit.
(m) Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the
Code of Civil Procedure, and the local agency shall prepare and certify the record of proceedings in accordance with
subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served,
provided that the cost of preparation of the record shall be borne by the local agency. Upon entry of the trial court's
order, a party shall, 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. 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.
(Amended by Stats. 2016, Ch. 420, Sec. 1. Effective January 1, 2017.)
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