Attachment 351
SUMMARY OF HOUSING ELEMENT LAW AND LITIGATION
SUMMARY
The following report describes the legal requirements for housing elements in detail and
evaluates potential strategies for non-compliance with these requirements. In summary:
The California Constitution requires the State Legislature to adopt laws of general
application to promote the public policies of the State.
The city is a subdivision of the State. It has broad discretion to adopt laws to promote
the health, safety and welfare of the inhabitants of the jurisdiction. Local laws may not
conflict with general law. In this case, general law includes the State Planning and
Zoning Law and the specific requirements of the Housing Element Law.
The California Legislature adopted the Housing Element Law to promote a statewide
policy of providing housing opportunities for all Californians. The Housing Element
Law is significantly more detailed and more directive than the general provisions of
State planning law, applicable to other elements of a city’s general plan. For the last
few years, the Legislature has adopted several statutes to make the requirements on
local government stricter, more detailed, harder to evade and easier to enforce.
Courts require that cities and counties substantially comply with the requirements of
the law. This means actual compliance with the substance of each specific Housing
Element Law requirement. So long as counties have met the specific statutory
requirements, courts will not second-guess the wisdom of local legislatures in adopting
particular policies and implementing actions.
To date, the State has not taken legal action to enforce Housing Element requirements
on non-compliant or recalcitrant jurisdictions. The Attorney General has authority to
file such a lawsuit. The Housing Element Law provides for private enforcement and
judicial remedies for a breach of a jurisdiction’s obligations. Housing advocates have
sued numerous jurisdictions for non-compliance. The appendix to this memo lists
jurisdictions that were sued and the consequences – orders to bring Housing
Elements into compliance, injunctions prohibiting development approvals other
than housing, and attorneys’ fees awards.
The city is given a Regional Housing Needs Assessment (RHNA) by the local council
of governments (Southern California Association of Governments or SCAG). SCAG
receives an overall city RHNA from the State Department of Housing and Community
Development and determines the RHNA for each jurisdiction. State law provides a
procedure for challenging a city’s allocation.
The Housing Element Law has been interpreted and upheld by the courts. A challenge
to the law, or its enforcement, will in all probability fail. The doctrine of equitable
estoppel is rarely applied against a public agency, particularly where estoppel is sought
against enforcement of a law enacted to further a public policy. A claim based on the
ATTACHMENT 35
2
State’s creation and exacerbation of the housing problem through failure to enforce
immigration laws appears to raise political, non-justifiable questions that courts will
not review.
Thus, a city’s non-compliance with the requirements of law entails risks. If non-
compliance is deliberate and publicly advertised, the risk of being sued and the risk
that a court will impose draconian and costly remedies increase.
BACKGROUND – GENERAL PLAN LAW
The California Planning and Zoning Law requires a city to prepare, periodically review, and
revise, as necessary, the general plan (Government Code §§ 65100(a), 65300). It must also
implement the general plan through actions including, but not limited to, the administration of
specific plans and zoning and subdivision ordinances (§ 65100(b)).
The general plan shall consist of a statement of development policies and shall include a diagram
or diagrams and text setting forth objectives, principles, standards, and plan proposals. (§ 65302.)
A general plan has seven mandatory elements including a housing element as provided in Article
10.6 (§ 65302(c)).1
A city has inherent police power to control its own land use decisions, and for the most part has
broad discretion in carrying out the legislative mandate to adopt general plans. See DeVita v.
County of Napa (1995) 17 C.3d 9 Cal. 4th 763, 781-783 (holding that general plan can be
amended by initiative). In contrast, the Housing Element Law imposes specific obligations on
cities in furtherance of a state policy to promote affordable housing. (See legislative findings §
65580: Decent housing and suitable living environment for every Californian is a statewide goal;
attainment requires cooperative participation of local government and private sector to expand
housing opportunities and accommodate housing needs of Californians of all economic levels;
local and state governments have a responsibility to make adequate provisions for the housing
needs of all segments of the community).2
1 Article 10.6 included §§ 65580-65589.8 and referred to in this memo as the “Housing Element Law.” Related
provisions of the Government Code are Article 10.7 § 65590 (replacement housing in coastal zone), Chapter 4.2 §§
65913-65914 (Housing Development Approvals), and Chapter 4.3 (Density Bonuses and other Incentives) §§
65915-65918.
2 See legislative findings for § 65913. The Legislature found a severe shortage of affordable housing and a need to
encourage the development of new housing through “changes in law designed to expedite the local and state
residential development process, assure that local governments zone sufficient land at densities high enough for
production of affordable housing, and assure that local governments make a diligent effort through the
administration of land use and development controls and the provision of regulatory concessions and incentives to
significantly reduce housing development costs and thereby facilitate the development of affordable housing,
including housing for elderly persons and families….” These changes in the law are consistent with the
responsibility of local government to adopt the program required by subdivision (c) of Section 65583.
(b) The Legislature further finds and declares that the costs of new housing developments have been increased, in
part, by the existing permit process and by existing land use regulations and that vitally needed housing
developments have been halted or rendered infeasible despite the benefits to the public health, safety, and welfare of
those developments and despite the absence of adverse environmental impacts. It is, therefore, necessary to enact
this chapter and to amend existing statutes which govern housing development so as to provide greater
encouragement for local and state governments to approve needed and sound housing developments.
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HOUSING ELEMENT COMPLIANCE ENFORCEMENT
No jurisdiction has successfully challenged the authority of the state to mandate compliance with
housing element law. Attached as Appendix A is a list of counties and cities which have been
sued and a description of consequences.
A. The Legislature has made clear its intent to elevate housing element law as an
enforceable mandate:
Section 65580: “The Legislature … declares … (a) The availability of housing is of vital
statewide importance, and the early attainment of decent housing and a suitable living
environment for every Californian, including farmworkers, is a priority of the highest order.
…
(d) Local … governments have a responsibility to use the powers vested in them to facilitate the
improvement and development of housing … for … all economic segments…”
GOVERNMENT CODE § 65581: “It is the intent of the Legislature in enacting this article: …
(a) To assure that counties … recognize their responsibilities in contributing to the attainment of
the state housing goal.
(b) To assure that counties … will prepare and implement housing elements which, … will move
toward attainment of the state housing goal.”
B. Authority to enforce housing mandates:
Section 65754: “In any action brought to challenge the validity of the general plan of any … city
…, if the court, in a final judgment …, finds that the general plan or any mandatory element …
does not substantially comply with the requirements of Article 5 [General Plan law] … : (a) The
… city … shall bring its general plan or relevant mandatory element[s] into compliance …
within 120 days…”
C. Mandatory judicial action:
Section 65755: “(a) The court shall include in the order or judgment rendered pursuant to
Section 65574, one or more of the following provisions … until the … city … has substantially
complied …:
(1) Suspend the authority … to issue building permits …
(2) Suspend the authority …to grant any … zoning changes, variances, or both.
(3) Suspend the authority … to grant subdivision map approvals …
(4) Mandate the approval of all applications for building permits … for residential housing
where a final subdivision map, parcel map … has been approved ... where the approval
will not impact on the ability of the … city … to properly adopt and implement an
adequate housing element …
(5) Mandate the approval of … final subdivision maps for residential housing projects which
have previously received a tentative map approval … where approval will not impact on
the ability of the … city … to properly adopt and implement an adequate housing
element …
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(6) Mandate that … any tentative subdivision map for a residential housing project shall be
approved … [if consistent with an adequate general plan.]”
D. Authority of State Attorney General:
There have been no lawsuits brought by the State to enforce compliance with housing element
law. This fact may follow from the right of the public to sue to ensure general plan compliance
(Sections 65754 and 65755), rather than from any statutory prohibition. The Attorney General
recently brought a related action against the County of San Bernardino, which updated its
General Plan to accommodate a projected 25% increase in population by the year 2030. The
Attorney General contends “ … the FEIR on the General Plan update … makes no attempt to
analyze the effects of … [emission] increases on global warming or the greenhouse gas
emissions reductions required by AB 32 …” (AB 32 seeks a 25% reduction in GHGs by 2020.)
The recent Grand Jury report stating “If the local jurisdiction does not change the HE and receive
certification, there is no state enforcement mechanism or penalty,” is correct in the sense there
is no direct requirement of certification; the Grand Jury acknowledged, however, the potential
for litigation for a noncompliant housing element resulting in court orders which may include
development moratoria.
The California Constitution provides a broad grant of authority to the Attorney General.
“Subject to the powers and duties of the Governor, the Attorney General shall be the Chief Law
Officer of the State. It shall be the duty of the Attorney General to see that the laws of the State
are uniformly and adequately enforced.” In the absence of legislative restriction (which does not
appear to exist in housing element law) the Attorney General has the authority to file any civil
action deemed necessary for the enforcement of the laws of California, the preservation of order,
and /or the protection of the rights and interest of the public. Section 65755, quoted above, has
effectively removed motivation for the state to expend resources pursuing litigation—public
interest groups are sufficiently motivated and compensated by judicial attorney fee awards.
E. Public proposals to “resist the state mandates:”
1. “Local communities have the right to control their own destiny.”
There is no “right to local self-government” except to the extent authority is delegated by state
law. The California State Legislature is constitutionally authorized to adopt state wide laws for
the public benefit;
The California Constitution, Article 4, Legislative, Section 16, provides:
“(a) All laws of a general nature have uniform operation.
(b) A local or special statute is invalid in any case if a general statute can be made
applicable.” (emphasis provided.)
The California Constitution, Article 11, Section 7, Local Government, provides:
“A county or city may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not in
conflict with general laws.” (emphasis provided.)
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2. “The State is estopped from enforcing housing laws because of its failure to control
immigration: the National Guard should be sent to the border..”
This theory would ask a court to (1) find that the State is estopped from enforcing the law, and
(2) adjudicate a political controversy and find that the Governor had a duty to call out the
National Guard to seal the borders. The lawsuit would fail.
First, equitable estoppel “will not apply against a governmental body except in unusual instances
when necessary to avoid grave injustice and when the result will not defeat a strong public
policy. (Bib'le v. Committee of Bar Examiners (1980) 26 Cal.3d 548, 553 [162 Cal. Rptr. 426,
606 P.2d 733]; Hock Investment Co. v. City and County of San Francisco (1989) 215 Cal. App.
3d 438, 449 [263 Cal. Rptr. 665].)” (Hughes, supra, 17 Cal. 4th at p. 793.) See City of Goleta v.
Superior Court (2006) 40 Cal.4th 260, 279, where the Supreme Court rejected a developer’s
claim that the city was estopped to deny a subdivision map. A “strong public policy” has clearly
been articulated by the California State Legislature in its enactment of housing law. Section
65580, quoted above.
Second, “political” controversy involving issues such as the wisdom and appropriate means to
control immigration are non-justiciable. The United States Supreme Court stated the test in
Vieth v. Jubelirer (2004) 541 U.S. 267, 277-78: “… Sometimes … the law is that the judicial
department has no business entertaining the claim of unlawfulness--because the question is
entrusted to one of the political branches or involves no judicially enforceable rights. See, e.g.,
Nixon v. United States, 506 U.S. 224, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) (challenge to
procedures used in Senate impeachment proceedings); Pac. States Tel. & Tel. Co. v. Oregon, 223
U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912) (claims arising under the Guaranty Clause of
Article IV, § 4). Such questions are said to be "nonjusticiable," or "political questions."
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), set forth six independent
tests for the existence of a political question:
"[1] a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate branches of
the government; or [5] an unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question." Id., 369 U.S. 186 at 217, 82 S.
Ct. 691, 7 L. Ed. 2d 663.
It appears that the challenge to the Housing Element Law on grounds that the State is estopped
from enforcing it because of the failure of State and Federal Governments to enforce the
immigration laws meets several of the criteria for non-justiciability – a “constitutional
commitment of the issue to coordinate political departments,” a lack of judicially manageable
standards for resolution, and dependency on an “initial policy determination of a kind clearly for
nonjudicial discretion.” (See also Susman v. City of Los Angeles (1969) 269 Cal. App. 2d 803,
817-19; the Court of Appeal rejected a claim that the city and State were liable for not calling out
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the National Guard to protect against riot damage. It held that the city was not liable because of
various immunities and that the claim against the State was a non-justiciable political question.)
Third, the National Guard has been deployed to the border. Since August 2006, the California
National Guard has kept over 1,000 troops deployed along the California-Mexico border through
Operation Jump Start. Those California National Guard troops support U.S. Customs & Border
Patrol agents, but cannot legally engage in direct law enforcement activities:
• California Military & Veterans Code §§ 143 and 146(a) generally limit the use of the
California National Guard to cases of riot, public calamity and public catastrophe.
• The Posse Comitatus Act generally prohibits federal military personnel and National
Guard units under federal authority from acting in direct law enforcement roles within the
United States. 18 U.S.C. §1385.
• California National Guard troops participate in Operation Jump Start under the special
federal authority of United States Code Title 32.
F. CEQA compliance.
As with any project that has a potential to affect the environment, adoption of a housing element
requires compliance with CEQA. The necessity of careful analysis of potential impacts,
including careful cumulative effects and alternatives analysis has been emphasized by two recent
lawsuits.
First, the Attorney General, as noted above, recently brought a CEQA action against the County
of San Bernardino to compel analysis in the draft EIR of the effects of increased greenhouse gas
emissions which would result from the increased population projected and planned for in its
general plan. Second, San Francisco lost an appellate decision (unpublished) on June 22, 2007,
which held that a “revised” Housing Element in fact instituted changes reflecting a change to
greater densities, which changes were not speculative in nature, and which therefore required a
new EIR.
HOUSING ELEMENT LAW: DETERMINATION OF REGIONAL HOUSING NEED.
Unlike all other general plan elements, housing elements must be revised and updated every five
years. (Section 65588.) The revision is preceded by State HCD’s determination of the overall
housing need – the regional housing need allocation (RHNA), which in turn is allocated to the
cities and county by the Council of Governments (SCAG in Southern California). Section
65584(a) provides each city and county share of the RHNA is derived from and specifies the
housing needs of all income levels (“very low,” “low,” “moderate,” and “above moderate” as
defined by Health and Safety Code § 50093).
The RHNA allocation process begins with State HCD, in consultation with SCAG, determining
the region’s share no more than 24 months before the elements are due. (Sections 65584 and
65584.1.) Section 65584.01 (b) requires that the determination be based upon population
projections produced by the Department of Finance and regional population forecasts used in
preparing regional transportation plans. If the difference between the DOF projections and the
regional forecast is less than 3%, HCD must base the determination on the regional population
forecast. If the difference is greater than 3%, HCD and SCAG are required to discuss variances
in methodology used for population projections and seek agreement. SCAG is required to assist
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in the determination by providing data it used in the regional forecast relating to rate of
household growth, household size trends, new household rates, vacancy rates, and replacement
housing needs.
Section 65584.01(d) allows SCAG to file an objection within 30 days of HCD’s RHNA
determination. The objection must substantiate either (1) HCD failed to properly use either the
DOF or regional forecast as required, or (2) HCD failed to reasonably apply the statutory
methodology. An objection must include a proposed alternative determination of the RHNA and
documentation of the basis of the alternative determination. HCD must consider the objection
and make a final written explanation determination of the RHNA within 45 days. (Section
65584.01(d)(3).)
A. SCAG Allocation of RHNA to County and Cities:
SCAG must develop a methodology for distribution of the RHNA at least two years prior to the
housing element revision date. (Section 65584.04.) This entails survey of local governments
regarding factors such as jobs-housing ratio, development opportunities and constraints,
distribution of household growth vs. transportation, market demand, loss of subsidized housing,
housing cost burdens, and farmworker needs. However, no ordinance, policy, voter-approved
measure, or standard that directly or indirectly limits the number of residential building permits
issued may be used as a basis for a reduction in the RHNA allocation. (Section 65584.04(f)).
SCAG must distribute the draft allocation 18 months before the housing element revision date.
(Section 65584.05.) A revision of the allocated share may be requested within 60 days, “based
upon comparable data available for all affected jurisdictions and accepted planning methodology,
and supported by adequate documentation.” (Section 65584.05(b)). Within 60 days thereafter,
SCAG must accept, modify, or indicate the revision is inconsistent with the RHNA. (Section
65584.05(c.)) An appeal of the RHNA allocation must be heard within 60 days, and a proposed
final allocation issued within 45 days thereafter. (Section 65584.05(e) and (f)). Within 60 days
of the SCAG allocation, HCD determines whether the final allocation is consistent with the total
RHNA it assigned to the region, and revises the determination if necessary to achieve
consistency. (Section 65584.05(h)).
B. Legal challenge to RHNA allocations:
The statutory process, as outlined above, provides an administrative mechanism to object to
allocated housing numbers. A court would require exhaustion of the statutory objection
methodology before entertaining arguments, which could be brought by writ of mandamus, that
decisions of State HCD and/or SCAG amounted to an abuse of discretion and were not supported
by evidence. Judicial review would determine whether substantial evidence, as applied to the
application of Sections 65584.01 and 65584.04, supported the allocation.
C. Transfer of RHNA Allocation to Cities:
Section 65584.07 provides a mechanism for transfer of RHNA numbers before the housing
element revision is due under certain conditions:
(1) The city agrees to increase its RHNA;
(2) The transfer is within the city;
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(3) The city’s share of low-income and very low-income housing is reduced in the same
proportion as the city’s share of moderate- and avove moderate housing; and
(4) SBCAG determines that conditions 1 through 3 are satisfied.
HOUSING ELEMENT LAW: CONTENT REQUIREMENTS.
Section 65583 states the requirements for housing elements. The housing element shall identify
adequate sites for housing, including rental housing, factory-built housing, and mobilehomes,
and shall make adequate provision for the existing and projected needs of all economic segments
of the community. A housing element consists of:
A. An identification and analysis of projected housing needs, including the RHNA and
an inventory of resources and constraints relevant to meeting those needs. Section
65583(a) specifies the contents of the assessment and inventory.
B. A statement of the community's goals, quantified objectives, and policies relative to
the maintenance, preservation, improvement, and development of housing.3
C. A program that sets forth a five-year schedule of actions the local government is
undertaking or intends to undertake to implement the policies and achieve the goals and
objectives of the housing element. Section 65583(c) specifies program requirements.
Significantly, as amended by AB 2348, if the city’s housing inventory “does not identify
adequate sites to accommodate the [RHNA] need for groups of all household income
levels …, the program shall identify sites that can be developed for housing within the
planning period pursuant to § 65583.2(h)”
ELEMENTS OF THE HOUSING NEEDS ASSESSMENT AND INVENTORY.
Under § 65853(a), the assessment of housing needs and inventory of resources and constraints
shall include:
• Needs. Analysis and quantification of the locality’s existing and projected housing needs for
all income levels. These existing and projected needs shall include the locality’s share of the
regional housing need (RHNA) ((a)(1).) Analysis and documentation of household
characteristics, including level of payment compared to ability to pay, housing
characteristics, including overcrowding, and housing stock condition. ((a)(2))
• Sites inventory. An inventory of land suitable for residential development, including vacant
sites and sites having potential for redevelopment, and an analysis of the relationship of
zoning and public facilities and services to these sites. ((a)(3))
3 Section 65583(b)(2) provides “It is recognized that the total [identified] housing needs …may exceed available
resources and the community's ability to satisfy this need within the content of the [county’s] general plan …. Under
these circumstances, the quantified objectives need not be identical to the total housing needs. The quantified
objectives shall establish the maximum number of housing units by income category that can be constructed,
rehabilitated, and conserved over a five-year time period.”
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• Constraints analysis. An analysis of potential and actual governmental constraints upon the
maintenance, improvement, or development of housing for all income levels and persons
with special housing needs.4 Constraints include land use controls, building codes and their
enforcement, site improvements, fees and other exactions required of developers, and local
processing and permit procedures. The analysis must demonstrate local efforts to remove
governmental constraints that hinder the locality from meeting its RHNA share and from
meeting the need for housing for persons with special needs. ((a)(5).) An analysis of
potential and actual nongovernmental constraints upon the maintenance, improvement, or
development of housing for all income levels, including the availability of financing, the
price of land, and the cost of construction. ((a)(6).)
• Existing assisted housing that can change. An analysis of existing assisted housing
developments eligible to change from low-income housing uses during the next 10 years due
to termination of subsidy contracts, mortgage prepayment, or expiration of restrictions on
use.5 The statute specifies the contents of the analysis in detail. ((a)(8).)6
HOUSING ELEMENT PROGRAM REQUIREMENTS.
Under § 65583(c), the local government must adopt a program that sets forth a five-year
schedule of existing or intended actions to implement the policies and achieve the goals and
objectives of the housing element. These include administration of land use and development
controls, regulatory concessions and incentives, and the utilization of appropriate federal and
state financing and subsidy programs when available (including housing funds set aside under
the Community Redevelopment Law). In order to make adequate provision for the housing
needs of all economic segments of the community, the program shall do all of the following:
• Actions to meet RHNA shortfall. Identify actions that will be taken to make sites available
during the planning period with appropriate zoning and development standards and with
services and facilities to accommodate that portion of the RHNA for each income level that
could not be accommodated on sites identified in the city’s inventory without rezoning.
Identify sites as needed to facilitate and encourage the development of a variety of types of
housing for all income levels, including multifamily rental housing, factory-built housing,
mobilehomes, housing for agricultural employees, emergency shelters, and transitional
housing. ((c)(1).)
Section ….. further provides: “(A) Where the inventory of sites, … does not identify
adequate sites to accommodate the [RHNA] need for groups of all household income levels
…, the program shall identify sites that can be developed for housing within the planning
period pursuant to § 65583.2(h). (Discussed infra.)
4 Under § 65583(a)(6), the county must analyze “any special housing needs, such as those of the elderly, persons
with disabilities, large families, farmworkers, families with female heads of households, and families and persons in
need of emergency shelter.”
5 "Assisted housing developments" means “multifamily rental housing that receives governmental assistance under
federal programs …, state and local multifamily revenue bond programs, local redevelopment programs, the federal
Community Development Block Grant Program, or local in-lieu fees. "Assisted housing developments" shall also
include multifamily rental units that were developed pursuant to a local inclusionary housing program or used to
qualify for a density bonus pursuant to § 65916.”
6 Section 65583(a)(7) requires an analysis of opportunities for energy conservation.
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(B) Where the inventory of sites… does not identify adequate sites to accommodate the
need for farmworker housing, the program shall provide for sufficient sites to meet the need
with zoning that permits farmworker housing use by right, including density and
development standards that could accommodate and facilitate the feasibility of the
development of farmworker housing for low- and very low income households.”
• Housing Assistance. Assist in the development of adequate housing to meet the needs of
low- and moderate-income households. ((c)(2).)
• Remove Government Constraints. Address and, where appropriate and legally possible,
remove governmental constraints to the maintenance, improvement, and development of
housing, including housing for all income levels and housing for persons with disabilities.
The program shall remove constraints to, or provide reasonable accommodations for housing
designed for, intended for occupancy by, or with supportive services for, persons with
disabilities. ((c)(3).)
• Conserve Housing Stock and Promote Housing Opportunity. Conserve and improve the
condition of the existing affordable housing stock, which may include addressing ways to
mitigate the loss of dwelling units demolished by public or private action. ((c)(4).) Promote
housing opportunities for all persons regardless of race, religion, sex, marital status, ancestry,
national origin, color, familial status, or disability. ((c)(5).)
• Preserve Assisted Housing Developments. Preserve for lower income households the
assisted housing developments identified pursuant to (a)(8). “The program for preservation
of the assisted housing developments shall utilize, to the extent necessary, all available
federal, state, and local financing and subsidy programs … except where a community has
other urgent needs for which alternative funding sources are not available. The program may
include strategies that involve local regulation and technical assistance.” ((c)(6)(A).)7
IDENTIFYING LAND SUITABLE FOR RESIDENTIAL DEVELOPMENT TO MEET HOUSING NEEDS.
Section 65583.2, added by § 3 of AB 2348, provides that “a city’s inventory of land suitable for
residential development [§ 65583(a)(3)] shall be used to identify sites that can be developed for
housing within the planning period and that are sufficient to provide for the jurisdiction's share of
the regional housing need …. ‘Land suitable for residential development’ includes: (1) Vacant
sites zoned for residential use; (2) Vacant sites zoned for nonresidential use that allows
residential development; (3) Residentially zoned sites that are capable of being developed at a
higher density; and (4) Sites zoned for nonresidential use that can be redeveloped for, and as
necessary, rezoned for, residential use.” (§ 65583.2(a).)
Section 65583.2(b) requires the inventory of land to list properties and identify parcel size, plan
7 Under § 65583(c)(6)(B) “The program shall include an identification of the agencies and officials responsible for
the implementation of the various actions and the means by which consistency will be achieved with other general
plan elements and community goals. The local government shall make a diligent effort to achieve public
participation of all economic segments of the community in the development of the housing element, and the
program shall describe this effort.”
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designation and zoning, existing use, environmental constraints, areas designated for market rate
housing without sewer service.8 Based on this information, the city “shall determine whether
each site in the inventory can accommodate some portion of its share of the regional housing
need by income level during the planning period …. The analysis shall determine whether the
inventory can provide for a variety of types of housing, including multifamily rental housing,
factory-built housing, mobilehomes, housing for agricultural employees, emergency shelters, and
transitional housing.” (§ 65583.2(c).)
Determination of number of units. The city shall determine the number of units that each site in
the inventory can accommodate, as follows:
1. Use the minimum density for development of a site (or adopt a law or regulations requiring
the development of a site at a minimum density), or demonstrate how the number of units
determined for that site will be accommodated.
2. Adjust the number of units calculated based on the land use controls and site improvements
requirement identified in § 65583(a)(4). The total of the individual sites’ adjusted densities
equals the number of units available to accommodate the housing need.
Determination of Density. For the number of units calculated to accommodate its calculated
share of the regional housing need for lower income households, a city “shall do either …:
(A) Provide an analysis demonstrating how the adopted densities accommodate this need. The
analysis shall include, but is not limited to, factors such as market demand, financial
feasibility, or information based on development project experience within a zone or zones
that provide housing for lower income households. [OR]
(B) The following densities shall be deemed appropriate to accommodate housing for lower
income households…(iii) For suburban jurisdictions: sites allowing at least 20 units per
acre.…9”
If the city can meet its share through analysis (“Method A”) the following provisions
requiring sites to be zoned at 20 units per acre do not apply.
ZONING OF SITES TO MEET SHORTFALL AT MINIMUM DENSITY WITH USE BY RIGHT.
If the city’s inventory does not identify site capacity to accommodate the entire RHNA for
housing for very low and low-income households, § 65583.2(h) requires the housing program (§
65583(c)(1)(A)) to accommodate the shortfall “on sites that shall be zoned to permit owner-
occupied and rental multifamily residential use by right during the planning period. These sites
8 Under § 65583.2(g), for non-vacant sites identified under (b)(3), the county “shall specify the additional
development potential for each site within the planning period and [explain] the methodology used to determine the
development potential. The methodology shall consider factors including the extent to which existing uses may
constitute an impediment to additional residential development, development trends, market conditions, and
regulatory or other incentives or standards to encourage additional residential development on these sites.”
9 Santa Barbara County is considered a suburban jurisdiction. Under § 65583.2(e) “Counties, not including the City
and County of San Francisco, will be considered suburban unless they are in a [Metropolitan Statistical Area
(MSA)] of 2,000,000 or greater in population in which case they are considered metropolitan.”
12
shall be zoned with minimum density and development standards that permit at least … 20 units
per acre ... At least 50 percent of the very low and low-income housing need shall be
accommodated on sites designated for residential use and for which nonresidential uses or
mixed-uses are not permitted.”
Section 65853.2(i) defines “use by right.” “The local government's review of the owner-
occupied or multifamily residential use may not require a conditional use permit, planned unit
development permit, or other discretionary local government review or approval that would
constitute a "project" for purposes of [the California Environmental Quality Act.] Any
subdivision of the sites shall be subject to all laws, including, but not limited to, the local
government ordinance implementing the Subdivision Map Act. A local ordinance may provide
that "use by right" does not exempt the use from design review. However, that design review
shall not constitute a "project" for purposes of [CEQA]. Use by right for all rental multifamily
residential housing shall be provided in accordance with § 65589.5(f).10
NEW HOUSING ELEMENTS MUST MAKE UP SHORTFALL IN ADDITION TO NEW REGIONAL SHARE.
Section 65584 applies to housing elements due on or after January 1, 2006. If the City in the
prior planning period failed to identify or make available adequate sites to accommodate its share
of the regional need, it shall, within the first year of the planning period of the new housing
element, zone or rezone adequate sites to meet the shortfall. (§ 65584.09(a).) The rezoning
required to meet the shortfall is in addition to any zoning or rezoning required to accommodate
the City’s share of the regional housing need for the new planning period and does not diminish
the City’s other obligations regarding the HousingElement. (§ 65584.09(b) and (c).)
LIMITS ON REDUCTION IN DENSITY – ACCOMMODATION OF REGIONAL HOUSING NEED.
Section 65863 is part of the zoning law. Section 65863(a) requires a city to ensure that its
inventory or programs of adequate sites under the housing element law (§§ 65583(a)(3) and
65583(c)(1) can accommodate its share of the regional housing need (§ 65584), throughout the
planning period.
The city shall not, by administrative or legislative action, reduce the residential density for any
parcel to a lower residential density that is below the density used by the state in determining
compliance with housing element law. (§ 65683(b).) The exceptions allowing density reduction
are narrow. The city may reduce residential density to a lower residential density only if it
makes written findings supported by substantial evidence that the reduction is consistent with the
general plan, including the housing element, and the remaining sites identified in the housing
element are adequate to accommodate the city’s share of the regional housing need. Density
may also be reduced if the city identifies sufficient additional, adequate, and available sites with
10 “(f) 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 § 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 project. Nothing in this section shall be construed to
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.”
13
an equal or greater residential density in the jurisdiction so that there is no net loss of residential
unit capacity. (§ 65683(c).) A court may enforce the statute and award attorneys’ fees to a
developer if the city is found in violation.
LIMITS ON HOUSING DEVELOPMENT DISAPPROVALS AND CONDITIONS.
Section 65589.5, called the “Anti-NIMBY Law,” is part of the Housing Element Law. It limits
the ability a city to disapprove or make infeasible housing developments that contribute to the
jurisdiction’s RHNA.
Section 65689.5(d) limits the city’s ability to disapprove or condition approval of an affordable
housing project11. The city may not disapprove, or condition approval (including design review
standards), in a manner that renders the project infeasible12 unless it finds, based upon substantial
evidence in the record, one of the following:
(1) The city has adopted a housing element in compliance with state law and the development
project is not needed to meet its share of the regional housing need for very low, low-, or
moderate-income housing.13
(2) The development project 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.14
(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.
(4) The development project 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) In limited circumstances, the development project is inconsistent with both the
jurisdiction's zoning ordinance and general plan land use designation as of the date the
application was deemed complete, and the jurisdiction has adopted a housing element in
11 The limitations apply to a housing development project, including farm worker housing, for very low, low- or
moderate-income households.
12 § 65589.5(h)(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.”
13 AB 575 (Torlakson) Chapter 601, 2005 Statutes, amended § 65589.5. The ability to disapprove housing
development projects based on plan inconsistency was further limited. Disapproval is not allowed when a
jurisdiction has not met its RHNA allocation (§ 65589.5(d)(1)).
14 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. AB 575 (note 16, supra) amends § 65589(d)(2) to specify that “inconsistency with the
zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public
health and safety.”
14
substantial compliance with the Housing Element Law.15
The limitations on disapprovals and conditions that make a project infeasible do not relieve the
City from compliance with the Congestion Management Program required by § 65088 or the
California Coastal Act (Public Resources Code § 30000 et seq.), or from complying with the
California Environmental Quality Act.
Section 65589.4 provides that an “attached housing development” in an urban infill area shall be
a permitted use not subject to a conditional use permit if the parcel is (1) zoned to allow the use
and the development is consistent with the zoning and general plan, (2) is covered by a plan
document adopted within the past five years, and (3) meets minimum density standards (more
than 100 units with minimum density of 12 units per acre, or 4 or fewer units with minimum
density of 8 units per acre). A project may not be disapproved if the only inconsistency is that
the property has not been rezoned to conform to the general plan.16
2006 HOUSING LAWS
Recent amendments to housing law continue the trend of increasing statutory encouragement of
legislative housing policy.
SB 1802 (Ducheny): Farmworker Housing By Right
Chapter 520, Statutes of 2006.
The Employee Housing Act (Calif. H & S Code § 17000 et seq.) currently provides that 12 or
fewer units or beds of employee housing (as defined in the Act) may be sited by right. SB 1802
expands this provision to 36 units or beds.
AB 1387 (Jones): CEQA Infill
Chapter 715, Statutes of 2006.
The California Environmental Quality Act (CEQA) generally prohibits approval of a project
(such as a housing development) for which a significant environmental impact has been
identified, unless the impact is mitigated or the local government makes certain findings. AB
1387 provides a limited exception to this requirement for traffic impacts on infill projects.
AB 2184 (Bogh): Residential facility siting.
15 “This subdivision cannot be utilized to disapprove an [affordable] housing development project defined in
subdivision (a) if the development project is proposed on a site that is identified 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.”
16 Added by SB 619 (Ducheny) Chapter 793 Statutes 2003 § 2, amended by SB 326 (Dunn) Chapter 598 Statutes
2005. The 2005 amendment makes the limitation on disapprovals applicable to “attached housing developments”,
defined to mean “a newly constructed or substantially rehabilitated structure containing two or more dwelling units
and consisting only of residential units, but does not include a second unit [§ 65852.2(h)(4)] or the conversion of an
existing structure to condominiums” (§ 65589.4(h).)
15
Chapter 746, Statutes of 2006.
This legislation would provide that the state statute governing zoning and conditional use permits
for residential care facilities for six or fewer persons does not prohibit adoption of local
ordinances dealing with health, safety, building, or environmental impact standards applicable to
homes or facilities not subject to state licensure. As amended, the bill appears to restate existing
law.
AB 2511 (Jones): Land Use and Housing
Chapter 88, Statutes of 2006.
AB 2511 made changes to several housing-related statutes:
Permit Streamlining Act
AB 2511 clarifies how the Act applies to affordable developments by specifying that it applies to
any development in which at least 49% of the units are affordable to very low- or low-income
households, and the rents will remain affordable for at least 30 years. It further specified that
mixed-use affordable developments meeting certain conditions are entitled to the Act’s expedited
timelines (see § 65950 (c)).
No Net Loss
The No Net Loss (NNL) law limits a locality’s authority to reduce the density of multi-family
zoned sites, or require a reduction in density of a project as a condition of approval, below the
density relied on in its housing element, absent certain findings.
AB 2511 revised the law to better conform to recent changes in housing element law, and to
ensure that it also applied to jurisdictions which do not have a compliant housing element.
Anti-Discrimination (Gov. Code § 65008)
Section 65008 prohibits discrimination by local governments in the enactment or administration
of their land use and zoning powers. AB 2511 clarifies that the prohibited discrimination applies
to the enactment or administration of any law by a local government. The bill also adds very low
income to the existing references to low and moderate income households in various sections,
and clarifies its application to provisions of the anti-NIMBY statute.
Annual Report on RHNA Progress
Existing law requires each local government to report annually on its progress in implementing
its general plan, including its progress toward meeting its RHNA and removing constraints (§
65400). AB 2511 provides a new enforcement mechanism to obtain compliance by local
governments with this provision.
Non-Substantive Changes
16
AB 2511 establishes an index in the code of the primary affordable housing related laws, which
can now be found in section 65582.1. The Anti-NIMBY law has been renamed the Housing
Accountability Act. (§ 65589.5).
AB 2634 (Lieber): Extremely Low Income
Chapter 891, Statutes of 2006.
AB 2634 adds several new provisions to housing element law to ensure that jurisdictions plan for
the housing needs of extremely low income households (those at 30% of median income and
below). The bill makes the following changes:
• Explicitly requires a quantification in the housing element of a jurisdiction’s extremely
low income housing need.
• Existing law provides that a jurisdiction’s adequate sites program must identify sites that
facilitate and encourage the development of a variety of housing types, and then provides
a list of such housing. AB 2634 adds supportive housing‚ and single room occupancy‚
units to the list of housing types. (See § 65583(c)(1).)
• Clarifies that in analyzing governmental constraints to the provision of housing for all
income levels, the jurisdiction must consider constraints on the development of housing
types referenced in the preceding paragraph. (§ 65583(a)(4).)
• Existing law requires the housing element to include a five-year program of actions,
which, among other things, will assist in the development of adequate housing to meet
the needs of very low, low and moderate-income households. AB 2634 adds extremely
low income to that provision. (See § 65583(c)(2).)
AB 782 (Mullin): Blight definition.
Chapter 113, Statutes of 2006.
Deletes the criterion for a blight finding that the land in the project area is characterized by the
existence of subdivided lots of irregular form and shape and inadequate size for proper
usefulness and development that are in multiple ownership.
SB 1206 (Kehoe): Blight definition and enforcement.
Chapter 595, Statutes of 2006.
Alters the definition of blight; makes it easier for residents to challenge unpopular
redevelopment decisions and increases Attorney General oversight of the redevelopment process.
SB 1210 (Torlakson): Eminent domain.
17
Chapter 594, Statutes of 2006.
Enacts several reforms to the condemnation process:
Requires a finding of continuing "substantial blight" prior to any exercise of eminent domain
pursuant to a redevelopment plan longer than 12 years after the adoption of the plan
Prevents issuance of a pre-judgment order of possession without prior notice and an opportunity
to respond for the property owner or occupants.
Requires an entity seeking to take property to offer to pay the property owner's reasonable costs
in ordering an independent appraisal of the property.
Defines litigation expenses to include reasonable attorney's fees and reasonable expert witness
and appraiser fees.
PREPARED BY SANTA BARBARA COUNTY COUNSEL, 2007.
18
APPENDIX A:
RESULTS OF HOUSING ELEMENT LITIGATION
19
COUNTY OF SACRAMENTO
SUED BY LEGAL SERVICES.
COUNTY FAILED TO IMPLEMENT ITS HOUSING ELEMENT.
COURT RULED AGAINST COUNTY IN SEVERAL PROCEEDINGS, RESULTING IN STIPULATED JUDGMENT
TO IMPLEMENT HOUSING ELEMENT. SUBSTANTIAL ATTORNEYS’ FEES AWARDED.
COURT ORDERED COUNTY TO ADOPT UPGRADED DEVELOPMENT STANDARDS FOR MULTIFAMILY
PROJECTS AND ENACT AMENDMENTS TO THE ZONING CODE TO ENSURE THAT MULTIFAMILY
PROJECTS ARE REVIEWED THROUGH A SIMPLIFIED PROCESS.
COUNTY IMPOSED MORATORIA PROHIBITING BUILDING EXCEPT MULTIFAMILY RESIDENCES ON
LANDS ZONED LIMITED COMMERCIAL OR SHOPPING CENTER. COUNTY ADOPTED AN
INCLUSIONARY ZONING ORDINANCE.
LEGAL SERVICES LAWSUIT REMAINS ACTIVE BASED ON CLAIMS COUNTY STILL HAS NOT COMPLIED
WITH THE SETTLEMENT AGREEMENT.
COUNTY OF MENDOCINO
SUED BY LEGAL SERVICES AND CALIFORNIA AFFORDABLE HOUSING LAW PROJECT.
STATE HCD REQUIRED COUNTY TO REZONE 40 ACRES FOR AFFORDABLE HOUSING. COUNTY SITES
WERE NOT PHYSICALLY OR REALISTICALLY CAPABLE OF ACCOMMODATING AFFORDABLE HOUSING.
SETTLEMENT IMPLEMENTED A DEVELOPMENT MORATORIUM IF HCD DID NOT CERTIFY THE
COUNTY’S HOUSING ELEMENT.
ATTORNEYS’ FEES AWARDED FOR PRE-LITIGATION WORK BASED ON PUBLIC BENEFIT THEORY.
HCD HAS CONDITIONALLY CERTIFIED THE COUNTY’S CURRENT HOUSING ELEMENT, BUT THE
COURT MONITORS ONGOING COUNTY COMPLIANCE.
COUNTY OF SONOMA
SUED BY SONOMA COUNTY HOUSING ADVOCACY GROUP.
COURT ORDERED MORATORIA ON ALL DEVELOPMENT UNTIL THE COUNTY ATTAINED A STATE
CERTIFIED HOUSING ELEMENT.
THE COUNTY WAS ORDERED TO PAY OVER $300,000 IN ATTORNEYS’ FEES.
20
COUNTY OF MADERA
SUED BY CALIFORNIA RURAL LEGAL ASSISTANCE.
COUNTY CHALLENGED HOUSING ELEMENT LAW AS AN “UNFUNDED MANDATE,” A DEFENSE WHICH
COUNTY COUNSEL DESCRIBED AS HANDING A “SLAM DUNK” WIN TO PLAINTIFFS.
COURT ORDERED COUNTY TO PAY ATTORNEYS’ FEES.
COUNTY OF NAPA
SUED BY CALIFORNIA RURAL LEGAL ASSISTANCE AND PUBLIC ADVOCATES, INC.
COURT ORDERED STIPULATION: THE COUNTY AGREED TO (1) MAKE ADEQUATE PROVISION FOR
LOW INCOME AND FARMWORKER HOUSING IN ITS GENERAL PLAN, (2) IDENTIFY AND REZONE SITES
TO ACCOMMODATE AFFORDABLE HOUSING, (3) ALLOCATE FUNDS FROM ITS TRUST FUND FOR
AFFORDABLE HOUSING, AND (4) PROHIBIT MARKET RATE DEVELOPMENT FROM SITES “RESTRAINED”
TO AFFORDABLE HOUSING – AS DETERMINED BY PLAINTIFF.
COURT ORDERED MORATORIA ON DEVELOPMENT.
THE COUNTY WAS ORDERED TO PAY ATTORNEYS’ FEES.
COUNTY OF SUTTER
SUED BY CALIFORNIA RURAL LEGAL ASSISTANCE.
COURT ORDERED CONSENT DECREE REQUIRING THE COUNTY IDENTIFY ADEQUATE SITES TO
ACCOMMODATE AFFORDABLE HOUSING.
COUNTY OF SANTA CRUZ
SUED BY CALIFORNIA RURAL LEGAL ASSISTANCE.
CIVIL GRAND JURY RECOMMENDED THE DISTRICT ATTORNEY SUE COUNTY SUPERVISORS TO
FORCE THEM TO COMPLY WITH HOUSING MANDATE.
COUNTY’S HOUSING ELEMENT CONTAINS AN “AFFORDABLE HOUSING COMBINING DISTRICT
PROGRAM,” WHICH PROVIDES FOR THE REZONING OF 44 ACRES AT 20 UNITS PER ACRE, WITH 40%
OF THE UNITS PERMANENTLY AFFORDABLE THROUGH DEED RESTRICTIONS.
WHEN PLAINTIFF SUED, THE PROGRAM HAD NOT GONE INTO EFFECT, AND THE 44 ACRES HAD NOT
BEEN DESIGNATED.
21
THE PROGRAM REQUIRED THE COUNTY TO APPLY DESIGN REVIEW, SUBDIVISION MAP ACT AND
CEQA REVIEW. BUT STATE LAW SAYS “THE USE AND DENSITY SHALL BE ALLOWED BY RIGHT.”
THE COURT RULED THE PROGRAM GAVE THE COUNTY DISCRETION TO APPLY CEQA CONTRARY TO
STATE LAW.
COUNTY COUNSEL ANTICIPATES THEY WILL BE WRITING PLAINTIFF “A BIG [ATTORNEYS’ FEES]
CHECK.”
COURT ORDERED THE COUNTY TO REZONE 30 ACRES FOR HIGH DENSITY PROJECTS BY JUNE 30,
2007. THE COUNTY WILL NOT MEET THE DEADLINE, AND EXPECTS PLAINTIFF WILL TAKE THEM
BACK TO COURT.
COUNTY OF YUBA
SUED BY CALIFORNIA RURAL LEGAL ASSISTANCE.
COURT ORDERED MORATORIA ON ALL DEVELOPMENT UNTIL THE COUNTY ATTAINED A STATE
CERTIFIED HOUSING ELEMENT.
COUNTY WAS ORDERED TO PAY SUBSTANTIAL ATTORNEYS’ FEES.
CITY OF BENICIA
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT.
STATE HCD CERTIFIED THE CITY’S HOUSING ELEMENT “BASED ON PAPER.” CAHLP TOOK
PICTURES OF SITES THE CITY IDENTIFIED. SOME WERE UNDER WATER; OTHER WERE ALREADY
DEVELOPED. HCD RESCINDED THEIR CERTIFICATION.
CITY SETTLED AFTER 6 MONTHS OF LITIGATION. THE CITY WAS ORDERED TO PAY $90,000 IN
ATTORNEYS’ FEES.
A NEW CITY COUNCIL RENEGED ON THE AGREEMENT, APPEALED THE COURT’S JUDGMENT THREE
TIMES, AND LOST ON EVERY APPEAL. ALL IN ALL, THE CITY EXPENDED $500,000 IN ATTORNEYS’
FEES.
SETTLEMENT EXCEEDED THE REQUIREMENTS OF STATE LAW.
CITY OF CORTE MADERA
SUED BY LEGAL AID AND PUBLIC ADVOCATES, INC.
COURT ISSUED AN INJUNCTION AGAINST CORTE MADERA, WHICH SETTLED THE LAWSUIT ON THE
CONDITION THAT THE CITY MEET A SERIES OF STRINGENT REQUIREMENTS, INCLUDING ATTAINING A
22
STATE CERTIFIED HOUSING ELEMENT AND IMPOSING A FEE ON COMMERCIAL DEVELOPMENT TO
FUND AFFORDABLE HOUSING.
COURT PROHIBITED THE CITY FROM APPROVING ANYTHING BUT AFFORDABLE HOUSING
DEVELOPMENT ON 10 KEY SITES UNTIL IT ATTAINED CERTIFICATION.
THE CITY WAS ORDERED TO PAY ATTORNEYS’ FEES.
CITY OF ROHNERT PARK
SUED BY SONOMA COUNTY HOUSING ADVOCACY GROUP.
COURT ORDERED ROHNERT PARK TO REVISE ITS HOUSING ELEMENT FOR IMMEDIATE SUBMISSION
TO HCD.
THE CITY WAS ORDERED TO PAY ATTORNEYS’ FEES.
CITY OF FOLSOM
SUED BY LEGAL SERVICES.
CITY PREVIOUSLY SIGNED AN AGREEMENT TO PRODUCE 650 AFFORDABLE UNITS WITHIN FOUR
YEARS. THE AGREEMENT FELL APART. NONE OF THE 7,000 HOUSING UNITS APPROVED BY THE
CITY DURING THE 10 YEARS BEFORE LITIGATION WERE FOR LOW OR MODERATE INCOME RESIDENTS.
COURT ORDERED MORATORIA ON DEVELOPMENT OF 600 ACRES UNTIL THE CITY ATTAINED A
STATE CERTIFIED HOUSING ELEMENT.
A STIPULATED JUDGMENT REQUIRED THE CITY TO REZONE 128 ACRES FOR AFFORDABLE HOUSING,
TO CREATE INCENTIVES FOR DEVELOPERS, AND TO CREATE AN AFFORDABLE HOUSING TRUST FUND.
CITY OF MISSION VIEJO
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT AND LEGAL AID.
THE CITY’S RHNA WAS SMALL – ONLY 94 MORE UNITS WERE NEEDED. THE CITY FAILED TO
COMPLY. HCD RESCINDED THEIR CERTIFICATION.
COURT ISSUED A WRIT AGAINST MISSION VIEJO AND ORDERED MORATORIA ON THE 3 SITES THE
CITY HAD IDENTIFIED BUT NOT REZONED FOR AFFORDABLE HOUSING.
COURT GAVE THE CITY 120 DAYS TO COMPLY WITH THE WRIT OR BE HELD IN CONTEMPT OF
COURT.
ATTORNEYS’ FEES ARE T.B.D. UPON FINAL JUDGMENT.
23
CITY OF PASADENA
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT AND LEGAL SERVICES.
COURT ORDERED MORATORIA ON ALL DEVELOPMENT UNTIL THE CITY ATTAINED A STATE
CERTIFIED HOUSING ELEMENT.
CITY OF HEALDSBURG
SUED BY SONOMA COUNTY HOUSING ADVOCACY GROUP.
SETTLEMENT AGREEMENT REQUIRED THE CITY TO REZONE PARCELS, ANNEX OTHERS, AND ENACT
ZONING ORDINANCES TO ENCOURAGE AFFORDABLE HOUSING.
THE CITY WAS ORDERED TO PAY ATTORNEYS’ FEES.
CITY OF SANTA ROSA
SUED BY CAHLP AND SONOMA COUNTY HOUSING ADVOCACY GROUP.
MOST OF THE HOUSING BUILT PRIOR TO LITIGATION WAS FOR UPPER INCOME HOUSEHOLDS. LOW
AND MODERATE INCOME FAMILIES (70% OF THE POPULATION) SAW ONLY 7% OF THE HOUSING
BUILT.
COURT ORDERED SANTA ROSA TO REVISE ITS HOUSING ELEMENT FOR IMMEDIATE SUBMISSION TO
HCD.
UNDER THE TERMS OF THEIR SETTLEMENT, SANTA ROSA IS COMMITTED TO SIMPLIFYING THE
APPROVAL PROCESS FOR HIGHER DENSITY HOUSING DEVELOPMENTS (E.G., DEVELOPERS ARE NOT
REQUIRED TO APPLY FOR CUPS), TO SPECIFYING A SITE FOR A 40 + BED HOMELESS SHELTER AND
ASSISTING WITH ITS ACQUISITION, TO ESTABLISHING AN AFFORDABLE HOUSING TRUST FUND, AND
TO IMPOSING A FEE ON NEW COMMERCIAL AND INDUSTRIAL DEVELOPMENT TO SUPPORT
DEVELOPMENT OF AFFORDABLE HOUSING FOR THE FACILITIES’ WORKERS.
CITY OF PITTSBURGH
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT AND PUBLIC ADVOCATES, INC.
SETTLEMENT COMMITTED THE CITY TO PRODUCE 990 UNITS OF AFFORDABLE HOUSING OVER 9
YEARS. 396 OF THESE UNITS MUST BE AFFORDABLE TO VERY LOW INCOME RESIDENTS. 200 OF
THESE MUST BE BUILT WITHIN 4 YEARS.
24
CITY ALSO AGREED TO PROVIDE INCENTIVES FOR CONSTRUCTION OF LARGER UNITS, AND UNITS
AFFORDABLE TO EXTREMELY LOW INCOME RESIDENTS, AND TO PROVIDE A PREFERENCE THAT
ENSURES PEOPLE WHO LIVE OR WORK IN THE CITY WILL BENEFIT FROM NEW UNITS.
CITY OF FREMONT
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT AND LAW CENTER FOR FAMILIES.
SETTLEMENT COMMITTED THE CITY TO (1) REZONE 286 ACRES FOR MULTI-FAMILY HOUSING AND
PLANNED DEVELOPMENT TO MEET AFFORDABLE HOUSING NEEDS, (2) IDENTIFY SITES FOR BUILDING
HOUSING THAT IS AFFORDABLE TO LOW AND VERY LOW INCOME HOUSEHOLDS, AND (3)
SIGNIFICANTLY MODIFY ITS HOUSING ELEMENT TO REMOVE BARRIERS AND BETTER PLAN FOR
AFFORDABLE HOUSING.
CITY OF LINCOLN
SUED BY LEGAL SERVICES.
COURT ORDERED MORATORIA ON ALL DEVELOPMENT UNTIL THE CITY ATTAINED A STATE
CERTIFIED HOUSING ELEMENT.
CITY OF WINTERS
SUED BY LEGAL SERVICES FOR NOT SETTING ASIDE A SUFFICIENT PERCENTAGE OF UNITS IN NEW
DEVELOPMENTS FOR AFFORDABLE HOUSING.
PARTIES SETTLED PURSUANT TO A STIPULATED JUDGMENT.
THE CITY MUST REPORT TO PLAINTIFF EACH YEAR, AND PLAINTIFF MAY APPROVE OR DISAPPROVE
OF THE CITY’S HOUSING ELEMENT.
CITY OF ALAMEDA
SUED IN FEBRUARY 2007: COLLINS V. CITY OF ALAMEDA.
PLAINTIFF OWNS 9 ACRES ALONG THE WATER AND WISHES TO DEVELOP HIGH DENSITY RESIDENTIAL
UNITS ON A PORTION ZONED INDUSTRIAL AND DESIGNATED AS POTENTIAL PUBLIC PARK SPACE.
PLAINTIFF IS ARGUING THAT THE CITY’S HOUSING ELEMENT IS INCONSISTENT WITH ITS GENERAL
PLAN, I.E., THE ZONING ORDINANCE WHICH PROHIBITS PLAINTIFF FROM DEVELOPING HIGH DENSITY
RESIDENTIAL UNITS ON HIS PARCEL IS INCONSISTENT WITH THE CITY’S NEED FOR AFFORDABLE
HOUSING IN ORDER TO IMPLEMENT THE PROVISIONS OF THEIR HOUSING ELEMENT.
25
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******
THE FOLLOWING CITIES AND COUNTY HAVE BEEN SUCCESSFUL IN DEFENDING HOUSING LAW
LITIGATION – NONE HAVE PREVAILED ON A THEORY THAT THEY DO NOT NEED TO COMPLY WITH
STATE LAW:
CITY OF GILROY
SUED BY CALIFORNIA AFFORDABLE HOUSING LAW PROJECT, CALIFORNIA RURAL LEGAL
ASSISTANCE, AND PUBLIC ADVOCATES, INC.
COURT RULED THAT GILROY’S GENERAL PLAN SUBSTANTIALLY COMPLIED WITH FORMER HOUSING
ELEMENT LAW – THE LAW THAT WAS IN EFFECT WHEN GILROY ADOPTED ITS HOUSING ELEMENT.
(PRIOR TO 2004, THE LAW DID NOT REQUIRE SITE SPECIFICITY.)
PLAINTIFFS HAVE FILED A PETITION FOR DE-PUBLICATION AND THE CASE IS NOW ON APPEAL
BEFORE THE CALIFORNIA SUPREME COURT.
CITY OF PLEASANTON
SUED BY PUBLIC ADVOCATES, INC.
THE CITY’S MOTION TO DISMISS WAS GRANTED ON THE GROUND THAT EACH CAUSE OF ACTION WAS
BARRED BY THE STATUTE OF LIMITATIONS, AND THAT THE FIRST THROUGH THIRD CAUSES OF
ACTION CHALLENGING THE CITY’S HOUSING CAP AND GROWTH MANAGEMENT ORDINANCE WERE
NOT RIPE.
THE CITY ANTICIPATES THERE WILL BE AN APPEAL.
COUNTY OF HUMBOLDT
SUED BY A HOUSING ADVOCACY GROUP AND COALITION OF DEVELOPERS AND REAL ESTATE
PROFESSIONALS.
COURT FOUND COMPLAINT DEFICIENT BASED ON LAWS THAT WERE NOT APPLICABLE AT
HOUSING ELEMENT ADOPTION.
PLAINTIFFS HAVE FILED AN AMENDED COMPLAINT.