AMENDED IN ASSEMBLY MARCH 28, 2023
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1485
Introduced by Assembly Member Haney
(Principal coauthor: Senator Wiener)
February 17, 2023
An act to amend Section 65585 of the Government Code, relating to housing.
legislative counsel’s digest
AB 1485, as amended, Haney. Housing element: enforcement:
Attorney General.
The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the
department Department of Housing and Community Development to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.
Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to 98 intervene in the action or proceeding if a pro vision of law confers an unconditional right to intervene.
This bill would permit the Office of the Attorney General to intervene as a matter of unconditional right in an y le gal action addressing a violation of the housing laws for which the department may notify the office of the Attorney General that a city , county, or city and county has violated, as described above.
This bill would permit both the department and the office of the Attorney General to intervene as a matter of unconditional right in any legal action addr essing a violation of the specified housing laws described above, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 65585 of the Government Code is line 2 amended to read:
line 3 65585. (a) In the preparation of its housing element, each city line 4 and county shall consider the guidelines adopted by the department line 5 pursuant to Section 50459 of the Health and Safety Code. Those line 6 guidelines shall be advisory to each city or county in the line 7 preparation of its housing element.
line 8 (b) (1) At least 90 days prior to adoption of a re vision of its line 9 housing element pursuant to subdivision (e) of Section 65588, or line 10 at least 60 days prior to the adoption of a subsequent amendment line 11 to this element, the planning agency shall submit a draft element line 12 revision or draft amendment to the department. The local line 13 government of the planning agenc y shall mak e the first draft line 14 revision of a housing element available for public comment for at line 15 least 30 days and, if an y comments are recei ved, the local line 16 government shall take at least 10 b usiness days after the 30-day line 17 public comment period to consider and incorporate public line 18 comments into the draft re vision prior to submitting it to the line 19 department. F or an y subsequent draft re vision, the local line 20 government shall post the draft revision on its internet website and line 21 shall email a link to the draft re vision to all indi viduals and line 22 organizations that ha ve previously requested notices relating to 98 — 2 — AB 1485
line 1 the local government’s housing element at least seven days before line 2 submitting the draft revision to the department. line 3 (2) The planning agenc y staf f shall collect and compile the line 4 public comments regarding the housing element recei ved by the line 5 city, county, or city and county , and pro vide these comments to line 6 each member of the legislative body before it adopts the housing line 7 element.
line 8 (3) The department shall review the draft and report its written line 9 findings to the planning agency within 90 days of its receipt of the line 10 first draft submittal for each housing element revision pursuant to line 11 subdivision (e) of Section 65588 or within 60 days of its receipt line 12 of a subsequent draft amendment or an adopted revision or adopted line 13 amendment to an element. The department shall not re view the line 14 first draft submitted for each housing element re vision pursuant line 15 to subdivision (e) of Section 65588 until the local government has line 16 made the draft available for public comment for at least 30 days line 17 and, if comments were recei ved, has tak en at least 10 b usiness line 18 days to consider and incorporate public comments pursuant to line 19 paragraph (1).
line 20 (c) In the preparation of its findings, the department may consult line 21 with any public agenc y, group, or person. The department shall line 22 receive and consider an y written comments from an y public line 23 agency, group, or person re garding the draft or adopted element line 24 or amendment under review.
line 25 (d) In its written findings, the department shall determine line 26 whether the draft element or draft amendment substantially line 27 complies with this article.
line 28 (e) Prior to the adoption of its draft element or draft amendment, line 29 the le gislative body shall consider the findings made by the line 30 department. If the department’s findings are not a vailable within line 31 the time limits set by this section, the le gislative body may act line 32 without them.
line 33 (f) If the department finds that the draft element or draft line 34 amendment does not substantially comply with this article, the line 35 legislative body shall take one of the following actions:
line 36 (1) Change the draft element or draft amendment to substantially line 37 comply with this article.
line 38 (2) Adopt the draft element or draft amendment without changes. line 39 The legislative body shall include in its resolution of adoption line 40 written findings which that explain the reasons the legislative body 98 AB 1485 — 3 —
line 1 believes that the draft element or draft amendment substantially line 2 complies with this article article , despite the findings of the line 3 department.
line 4 (g) Promptly follo wing the adoption of its element or line 5 amendment, the planning agenc y shall submit a cop y to the line 6 department.
line 7 (h) The department shall, within 90 days, re view adopted line 8 housing elements or amendments and report its findings to the line 9 planning agency.
line 10 (i) (1) (A) The department shall re view any action or f ailure line 11 to act by the city, county, or city and county that it determines is line 12 inconsistent with an adopted housing element or Section 65583, line 13 including any failure to implement any program actions included line 14 in the housing element pursuant to Section 65583. The department line 15 shall issue written findings to the city, county, or city and county line 16 as to whether the action or f ailure to act substantially complies line 17 with this article, and provide a reasonable time no longer than 30 line 18 days for the city , county, or city and county to respond to the line 19 findings before taking any other action authorized by this section, line 20 including the action authorized by subparagraph (B). line 21 (B) If the department finds that the action or f ailure to act by line 22 the city, county, or city and county does not substantially comply line 23 with this article, and if it has issued findings pursuant to this section line 24 that an amendment to the housing element substantially complies line 25 with this article, the department may re voke its findings until it line 26 determines that the city, county, or city and county has come into line 27 compliance with this article.
line 28 (2) The department may consult with an y local go vernment, line 29 public agency, group, or person, and shall recei ve and consider line 30 any written comments from any public agency, group, or person, line 31 regarding the action or f ailure to act by the city , county, or city line 32 and county described in paragraph (1), in determining whether the line 33 housing element substantially complies with this article. line 34 (j) The department shall notify the city , county, or city and line 35 county and may notify the office of the Attorney General that the line 36 city, county, or city and county is in violation of state la w if the line 37 department finds that the housing element or an amendment to this line 38 element, or an y action or f ailure to act described in subdi vision line 39 (i), does not substantially comply with this article or that any local line 40 government has taken an action in violation of the following:
98 — 4 — AB 1485
line 1 (1) Housing Accountability Act (Section 65589.5). line 2 (2) Section 65863.
line 3 (3) Chapter 4.3 (commencing with Section 65915). line 4 (4) Section 65008.
line 5 (5) Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019, line 6 Sections 65941.1, 65943, and 66300).
line 7 (6) Section 8899.50.
line 8 (7) Section 65913.4.
line 9 (8) Article 11 (commencing with Section 65650). line 10 (9) Article 12 (commencing with Section 65660). line 11 (10) Section 65913.11.
line 12 (11) Section 65400.
line 13 (12) Section 65863.2.
line 14 (13) Chapter 4.1 (commencing with Section 65912.100). line 15 (k) Commencing July 1, 2019, prior to the Attorney General line 16 bringing any suit for a violation of the pro visions identified in line 17 subdivision (j) related to housing element compliance and seeking line 18 remedies available pursuant to this subdi vision, the department line 19 shall offer the jurisdiction the opportunity for tw o meetings in line 20 person or via telephone to discuss the violation, and shall provide line 21 the jurisdiction written findings re garding the violation. This line 22 paragraph does not af fect any action filed prior to the ef fective line 23 date of this section. The requirements set forth in this subdivision line 24 do not apply to an y suits brought for a violation or violations of line 25 paragraphs (1) and (3) to (9), inclusive, of subdivision (j). line 26 (l) In any action or special proceeding brought by the Attorney line 27 General relating to housing element compliance pursuant to a line 28 notice or referral under subdivision (j), the Attorney General may line 29 request, upon a finding of the court that the housing element does line 30 not substantially comply with the requirements of this article line 31 pursuant to this section, that the court issue an order or judgment line 32 directing the jurisdiction to bring its housing element into line 33 substantial compliance with the requirements of this article. The line 34 court shall retain jurisdiction to ensure that its order or judgment line 35 is carried out. If a court determines that the housing element of line 36 the jurisdiction substantially complies with this article, it shall line 37 have the same force and effect, for purposes of eligibility for any line 38 financial assistance that requires a housing element in substantial line 39 compliance and for purposes of an y incentives pro vided under 98 AB 1485 — 5 —
line 1 Section 65589.9, as a determination by the department that the line 2 housing element substantially complies with this article. line 3 (1) If the jurisdiction has not complied with the order or line 4 judgment after 12 months, the court shall conduct a status line 5 conference. Following the status conference, upon a determination line 6 that the jurisdiction f ailed to comply with the order or judgment line 7 compelling substantial compliance with the requirements of this line 8 article, the court shall impose fines on the jurisdiction, which shall line 9 be deposited into the Building Homes and Jobs Trust Fund. Any line 10 fine le vied pursuant to this paragraph shall be in a minimum line 11 amount of ten thousand dollars ($10,000) per month, but shall not line 12 exceed one hundred thousand dollars ($100,000) per month, except line 13 as pro vided in paragraphs (2) and (3). In the e vent that the line 14 jurisdiction fails to pay fines imposed by the court in full and on line 15 time, the court may require the Controller to intercept any available line 16 state and local funds and direct such funds to the Building Homes line 17 and Jobs Trust Fund to correct the jurisdiction’ s failure to pay . line 18 The intercept of the funds by the Controller for this purpose shall line 19 not violate any provision of the California Constitution. line 20 (2) If the jurisdiction has not complied with the order or line 21 judgment after three months follo wing the imposition of fees line 22 described in paragraph (1), the court shall conduct a status line 23 conference. Following the status conference, if the court finds that line 24 the fees imposed pursuant to paragraph (1) are insufficient to bring line 25 the jurisdiction into compliance with the order or judgment, the line 26 court may multiply the fine determined pursuant to paragraph (1) line 27 by a factor of three. In the e vent that the jurisdiction f ails to pay line 28 fines imposed by the court in full and on time, the court may line 29 require the Controller to intercept an y available state and local line 30 funds and direct such funds to the Building Homes and Jobs Trust line 31 Fund to correct the jurisdiction’ s failure to pay. The intercept of line 32 the funds by the Controller for this purpose shall not violate an y line 33 provision of the California Constitution.
line 34 (3) If the jurisdiction has not complied with the order or line 35 judgment six months follo wing the imposition of fees described line 36 in paragraph (1), the court shall conduct a status conference. Upon line 37 a determination that the jurisdiction failed to comply with the order line 38 or judgment, the court may impose the following:
line 39 (A) If the court finds that the fees imposed pursuant to line 40 paragraphs (1) and (2) are insufficient to bring the jurisdiction into 98 — 6 — AB 1485
line 1 compliance with the order or judgment, the court may multiply line 2 the fine determined pursuant to paragraph (1) by a f actor of six. line 3 In the event that the jurisdiction fails to pay fines imposed by the line 4 court in full and on time, the court may require the Controller to line 5 intercept any available state and local funds and direct such funds line 6 to the Building Homes and Jobs Trust Fund to correct the line 7 jurisdiction’s f ailure to pay . The intercept of the funds by the line 8 Controller for this purpose shall not violate an y provision of the line 9 California Constitution.
line 10 (B) The court may order remedies available pursuant to Section line 11 564 of the Code of Civil Procedure, under which the agent of the line 12 court may tak e all go vernmental actions necessary to bring the line 13 jurisdiction’s housing element into substantial compliance pursuant line 14 to this article in order to remedy identified deficiencies. The court line 15 shall determine whether the housing element of the jurisdiction line 16 substantially complies with this article and, once the court makes line 17 that determination, it shall have the same force and effect, for all line 18 purposes, as the department’ s determination that the housing line 19 element substantially complies with this article. An agent appointed line 20 pursuant to this paragraph shall ha ve e xpertise in planning in line 21 California.
line 22 (4) This subdivision does not limit a court’s discretion to apply line 23 any and all remedies in an action or special proceeding for a line 24 violation of any law identified in subdivision (j). line 25 (m) In determining the application of the remedies a vailable line 26 under subdivision (l), the court shall consider whether there are line 27 any mitigating circumstances delaying the jurisdiction from coming line 28 into compliance with state housing la w. The court may consider line 29 whether a city, county, or city and county is making a good f aith line 30 effort to come into substantial compliance or is facing substantial line 31 undue hardships.
line 32 (n) Nothing in this section shall limit the authority of the office line 33 of the Attorney General to bring a suit to enforce state la w in an line 34 independent capacity. The office of the Attorney General may seek line 35 all remedies available under law including those set forth in this line 36 section, and shall be permitted to interv ene as a matter of line 37 unconditional right, under subparagraph (A) of paragraph (1) of line 38 subdivision (d) of Section 387 of the Code of Civil Procedure, in line 39 any le gal action addressing a violation of an y la w set forth in line 40 subdivision (j). section.
98 AB 1485 — 7 —
line 1 (o) Notwithstanding Sections 11040 and 11042, if the Attorney line 2 General declines to represent the department in an y action or line 3 special proceeding brought pursuant to a notice or referral under line 4 subdivision (j) (j), the department may appoint or contract with line 5 other counsel for purposes of representing the department in the line 6 action or special proceeding.
line 7 (p) Notwithstanding any other provision of law, the statute of line 8 limitations set forth in subdivision (a) of Section 338 of the Code line 9 of Civil Procedure shall apply to any action or special proceeding line 10 brought by the Office office of the Attorney General or pursuant line 11 to a notice or referral under subdivision (j), or by the department line 12 pursuant to subdivision (o).
line 13 (q) In any suit brought to enforce either this article or any state line 14 law listed under subdivision (j), the department and the office of line 15 the Attorney General shall eac h have the unconditional right to line 16 intervene under subparagraph (A) of paragraph (1) of subdivision line 17 (d) of Section 387 of the Code of Civil Pr ocedure. The office of line 18 the Attorney General shall have this unconditional right whether line 19 intervening in an independent capacity or pursuant to a notice or line 20 referral from the department.
O
98 — 8 — AB 1485
May 3, 2023
The Honorable D Haney
California State Assembly
1021 O Street, Suite 5310
P.O. Box 942849
Sacramento, CA 94249-0017
RE: OPPOSE AB 1485 (Haney) – Housing element: enforcement: Attorney General
Dear Senator Haney,
This bill would permit the Attorney General and the Department of Housing and Community Development to intervene as a matter of unconditional right in any legal action addressing housing laws. The right to intervene as a matter of unconditional right should certainly not be extended.
For those reasons, the City of Huntington Beach opposes AB 1485. Should you have any questions about our position on this bill or about ACC-OC, please contact Ursula Luna-Reynosa, Community Development Director, at 714-536-5276 or [email protected].
Sincerely,
Tony Strickland
Mayor
CC: Senator Janet Nguyen
Senator Dave Min
Assembly Member Chris Holden, Chair of the Appropriations Committee Assembly Member Diane Dixon
Assembly Member Tri Ta
ACC-OC Board of Directors (via email)
Bismarck Obando, Director of Public Affairs ([email protected]) League of California Cities ([email protected])