CITY OF HUNTINGTON BEACH
2000 MAIN STREET, HUNTINGTON BEACH, CALIFORNIA 92648-2702
GRACEY VAN DER MARK
MAYOR
714.536.5553
May 8, 2024
The Honorable David Alvarez
California State Assembly
1020 O Street, Rm 5320
Sacramento, CA 95829
Re: AB 1886 (Alvarez)—Oppose
Dear Assemblymember Alvarez:
On behalf of the City of Huntington Beach, I write in opposition to AB 1886, which would specify a housing element without amendments is only considered approved if the update is approved by the Department of Housing and Community Development (HCD) or by a court determination, among other things.
Under current law, local governments have a statutory deadline to submit housing elements to HCD and HCD is required to respond on whether the draft complies with the law. If HCD determines it doesn’t comply with the standards, a discussion ensues, and local governments may resubmit their revised plans. AB 1886 makes a rebuttable presumption that HCDs determination is valid, regardless of if there are revisions unfounded.
As an alternative to the process, in the instance that a local government submits their housing element without amendments to HCD, the process is called self-certification. AB 1886 eliminates the opportunity for self-certification regardless of whether HCD would concur with the submitted element. The only other recourse remaining in this bill would be for a local government to go to court to make such a determination, leading to an unnecessary commitment of resources, court and staff time.
Finally, whether a housing element is determined to be updated and compliant or not have serious repercussions on local governments that jeopardizes the critical need for local land use planning.
Sincerely,
Gracey Van Der Mark
Mayor
Cc: Huntington Beach City Council
AMENDED IN ASSEMBLY APRIL 15, 2024
AMENDED IN ASSEMBLY APRIL 1, 2024
california legislature—2023–24 regular session
ASSEMBLY BILL No. 1886
Introduced by Assembly Member Alvarez
January 22, 2024
An act to amend Sections 65585 and 65589.5 of the Go vernment Code, relating to land use.
legislative counsel’s digest
AB 1886, as amended, Alvarez. Housing Element Law: substantial compliance: Housing Accountability Act.
(1) The Planning and Zoning Law requires a city or county to adopt a general plan for land use de velopment within its boundaries that includes, among other things, a housing element. Existing la w, commonly referred to as the Housing Element La w, prescribes requirements for a city’ s or county’ s preparation of, and compliance with, its housing element, and requires the Department of Housing and Community Development to review and determine whether the housing element substantially complies with the Housing Element La w, as specified. If the department finds that a draft housing element or amendment does not substantially comply with the Housing Element Law, existing law requires the legislative body of the city or county to either (A) change the draft element or amendment to substantially comply with the Housing Element Law or (B) adopt the draft housing element or amendment without changes and mak e specified findings as to why the draft element or amendment substantially complies with the Housing Element La w despite the findings of the department.
97 Existing law requires a planning agency to promptly submit an adopted housing element or amendment to the department and requires the department to review the adopted housing element or amendment and report its findings to the planning agency within 60 days.
This bill w ould require a planning agenc y that mak es the above-described findings as to wh y a draft housing element or amendment substantially complies with the Housing Element La w despite the findings of the department to submit those findings to the department. The bill w ould require the department to re view those finding in its review of an adopted housing element or amendment. The bill w ould create a reb uttable presumption of v alidity for the department’s findings as to whether the adopted element or amendment substantially complies with the Housing Element Law. Because the bill would require planning agencies to submit specified findings to the department with an adopted housing element or amendment, the bill would impose a state-mandated local program.
This bill would pr ovide that a housing element or amendment is considered substantially compliant with the Housing Element Law when the local agency has adopted a housing element or amendment and the department or a court of competent jurisdiction determines the adopted housing element or amendment to be in substantial compliance with the Housing Element Law. The bill would specify that a determination of substantial compliance continues until the department or a court of competent jurisdiction determines otherwise or the end of the applicable housing element cycle. The bill would provide that these provisions are declaratory of existing law.
(2) Existing law, the Housing Accountability Act, among other things, prohibits a local agenc y from disapproving, or conditioning appro val in a manner that renders infeasible, a housing development project for very low, low-, or moderate-income households unless the local agency makes written findings as to one of certain sets of conditions, as specified. One set of conditions is that (A) the jurisdiction has adopted a housing element that is in substantial compliance with the Housing Element Law, and (B) the jurisdiction has met or exceeded its share of the regional housing need allocation for the planning period for the income category proposed for the housing development project.
This bill w ould pro vide that, for purposes of disappro ving or conditionally approving a housing de velopment project for v ery low, low-, or moderate-income households, a housing element or amendment is considered substantially compliant with the Housing Element La w 97 — 2 — AB 1886
when the local agenc y has adopted a housing element or amendment and the department or a court of competent jurisdiction determines the adopted housing element or amendment to be in substantial compliance with the Housing Element La w. The bill w ould specify that a determination of substantial compliance continues until the department or a court of competent jurisdiction determines otherwise or the end of the applicable housing element cycle. The bill would provide that these provisions are declaratory of existing law.
(3) The Housing Accountability Act also requires
Existing law subjects a housing development project to only be subject to the ordinances, policies, and standards adopted and in effect when a preliminary application was submitted, except as specified.
This bill would provide that require a housing element or amendment must to be considered in substantial compliance with the Housing Element Law only if the element or amendment was determined to be in substantial compliance when a preliminary application or complete application was submitted, as specified. The bill w ould provide that this provision is declaratory of existing law.
(4)
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
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 97 AB 1886 — 3 —
line 1 revision or draft amendment to the department. The local line 2 government of the planning agenc y shall mak e the first draft line 3 revision of a housing element available for public comment for at line 4 least 30 days and, if an y comments are recei ved, the local line 5 government shall take at least 10 b usiness days after the 30-day line 6 public comment period to consider and incorporate public line 7 comments into the draft re vision prior to submitting it to the line 8 department. F or an y subsequent draft re vision, the local line 9 government shall post the draft revision on its internet website and line 10 shall email a link to the draft re vision to all indi viduals and line 11 organizations that ha ve previously requested notices relating to line 12 the local government’s housing element at least seven days before line 13 submitting the draft revision to the department. line 14 (2) The planning agenc y staf f shall collect and compile the line 15 public comments regarding the housing element recei ved by the line 16 city, county, or city and county and pro vide these comments to line 17 each member of the legislative body before it adopts the housing line 18 element.
line 19 (3) The department shall review the draft and report its written line 20 findings to the planning agency within 90 days of its receipt of the line 21 first draft submittal for each housing element revision pursuant to line 22 subdivision (e) of Section 65588 or within 60 days of its receipt line 23 of a subsequent draft amendment or an adopted revision or adopted line 24 amendment to an element. The department shall not re view the line 25 first draft submitted for each housing element re vision pursuant line 26 to subdivision (e) of Section 65588 until the local government has line 27 made the draft available for public comment for at least 30 days line 28 and, if comments were recei ved, has tak en at least 10 b usiness line 29 days to consider and incorporate public comments pursuant to line 30 paragraph (1).
line 31 (c) In the preparation of its findings, the department may consult line 32 with any public agenc y, group, or person. The department shall line 33 receive and consider an y written comments from an y public line 34 agency, group, or person re garding the draft or adopted element line 35 or amendment under review.
line 36 (d) In its written findings, the department shall determine line 37 whether the draft element or draft amendment substantially line 38 complies with this article.
line 39 (e) Prior to the adoption of its draft element or draft amendment, line 40 the le gislative body shall consider the findings made by the 97 — 4 — AB 1886
line 1 department. If the department’s findings are not a vailable within line 2 the time limits set by this section, the le gislative body may act line 3 without them.
line 4 (f) If the department finds that the draft element or draft line 5 amendment does not substantially comply with this article, the line 6 legislative body shall take one of the following actions:
line 7 (1) Change the draft element or draft amendment to substantially line 8 comply with this article.
line 9 (2) Adopt the draft element or draft amendment without changes. line 10 The legislative body shall include in its resolution of adoption line 11 written findings that e xplain the reasons the le gislative body line 12 believes that the draft element or draft amendment substantially line 13 complies with this article despite the findings of the department. line 14 (g) Promptly follo wing the adoption of its element or line 15 amendment, the planning agency shall submit a copy of the adopted line 16 element or amendment and an y findings made pursuant to line 17 paragraph (2) of subdivision (f) to the department. line 18 (h) (1) The department shall, within 60 days, re view adopted line 19 housing elements or amendments and an y findings pursuant to line 20 paragraph (2) of subdivision (f), make a finding as to whether the line 21 adopted element or amendment is in substantial compliance with line 22 this article, and report its findings to the planning agency. line 23 (2) (A) For purposes of subdivision (d) of Section 65589.5, a line 24 housing element or amendment shall be considered to be in line 25 substantial compliance with this article when both of the following line 26 conditions are satisfied:
line 27 (i) The local agency adopts the housing element or amendment line 28 in accordance with this section.
line 29 (ii) The department or a court of competent jurisdiction line 30 determines the adopted housing element or amendment to be in line 31 substantial compliance with this article.
line 32 (B) A housing element or amendment shall continue to be line 33 considered in substantial compliance with this article until either line 34 of the following occur:
line 35 (i) The department or a court of competent jurisdiction line 36 determines that the adopted housing element or amendment is no line 37 longer in substantial compliance with this article. line 38 (ii) The end of the applicable housing element cycle. line 39 (C) This paragraph does not constitute a change in, b ut is line 40 declaratory of, existing law.
97 AB 1886 — 5 —
line 1 (3) In any legal proceeding initiated to enforce the pro visions line 2 of this article, the department’ s findings made pursuant to this line 3 subdivision and subdi vision (b) shall create a reb uttable line 4 presumption of v alidity as to whether the adopted element or line 5 amendment substantially complies with this article. line 6 (i) (1) (A) The department shall re view any action or f ailure line 7 to act by the city, county, or city and county that it determines is line 8 inconsistent with an adopted housing element or Section 65583, line 9 including any failure to implement any program actions included line 10 in the housing element pursuant to Section 65583. The department line 11 shall issue written findings to the city, county, or city and county line 12 as to whether the action or f ailure to act substantially complies line 13 with this article, and provide a reasonable time no longer than 30 line 14 days for the city , county, or city and county to respond to the line 15 findings before taking any other action authorized by this section, line 16 including the action authorized by subparagraph (B). line 17 (B) If the department finds that the action or f ailure to act by line 18 the city, county, or city and county does not substantially comply line 19 with this article, and if it has issued findings pursuant to this section line 20 that an amendment to the housing element substantially complies line 21 with this article, the department may re voke its findings until it line 22 determines that the city, county, or city and county has come into line 23 compliance with this article.
line 24 (2) The department may consult with an y local go vernment, line 25 public agency, group, or person, and shall recei ve and consider line 26 any written comments from any public agency, group, or person, line 27 regarding the action or f ailure to act by the city , county, or city line 28 and county described in paragraph (1), in determining whether the line 29 housing element substantially complies with this article. line 30 (j) The department shall notify the city , county, or city and line 31 county and may notify the office of the Attorney General that the line 32 city, county, or city and county is in violation of state la w if the line 33 department finds that the housing element or an amendment to this line 34 element, or an y action or f ailure to act described in subdi vision line 35 (i), does not substantially comply with this article or that any local line 36 government has taken an action in violation of the following:
line 37 (1) Housing Accountability Act (Section 65589.5). line 38 (2) Section 65863.
line 39 (3) Chapter 4.3 (commencing with Section 65915). line 40 (4) Section 65008.
97 — 6 — AB 1886
line 1 (5) Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019, line 2 Sections 65941.1, 65943, and 66300).
line 3 (6) Section 8899.50.
line 4 (7) Section 65913.4.
line 5 (8) Article 11 (commencing with Section 65650). line 6 (9) Article 12 (commencing with Section 65660). line 7 (10) Section 65913.11.
line 8 (11) Section 65400.
line 9 (12) Section 65863.2.
line 10 (13) Chapter 4.1 (commencing with Section 65912.100). line 11 (14) Section 65905.5.
line 12 (15) Section 65852.2.
line 13 (16) Section 65852.21.
line 14 (17) Section 65852.22.
line 15 (18) Section 65852.23.
line 16 (19) Section 65852.24.
line 17 (20) Section 65852.26.
line 18 (21) Section 66411.7.
line 19 (22) Section 65913.16.
line 20 (23) Article 2 (commencing with Section 66300.5) of Chapter line 21 12.
line 22 (24) Section 65852.28.
line 23 (25) Section 65913.4.5.
line 24 (26) Section 66499.41.
line 25 (k) Commencing July 1, 2019, prior to the Attorney General line 26 bringing any suit for a violation of the pro visions identified in line 27 subdivision (j) related to housing element compliance and seeking line 28 remedies available pursuant to this subdi vision, the department line 29 shall offer the jurisdiction the opportunity for tw o meetings in line 30 person or via telephone to discuss the violation, and shall provide line 31 the jurisdiction written findings re garding the violation. This line 32 paragraph does not af fect any action filed prior to the ef fective line 33 date of this section. The requirements set forth in this subdivision line 34 do not apply to an y suits brought for a violation or violations of line 35 paragraphs (1) and (3) to (9), inclusive, of subdivision (j). line 36 (l) In any action or special proceeding brought by the Attorney line 37 General relating to housing element compliance pursuant to a line 38 notice or referral under subdivision (j), the Attorney General may line 39 request, upon a finding of the court that the housing element does line 40 not substantially comply with the requirements of this article 97 AB 1886 — 7 —
line 1 pursuant to this section, that the court issue an order or judgment line 2 directing the jurisdiction to bring its housing element into line 3 substantial compliance with the requirements of this article. The line 4 court shall retain jurisdiction to ensure that its order or judgment line 5 is carried out. If a court determines that the housing element of line 6 the jurisdiction substantially complies with this article, it shall line 7 have the same force and effect, for purposes of eligibility for any line 8 financial assistance that requires a housing element in substantial line 9 compliance and for purposes of an y incentives pro vided under line 10 Section 65589.9, as a determination by the department that the line 11 housing element substantially complies with this article. line 12 (1) If the jurisdiction has not complied with the order or line 13 judgment after 12 months, the court shall conduct a status line 14 conference. Following the status conference, upon a determination line 15 that the jurisdiction f ailed to comply with the order or judgment line 16 compelling substantial compliance with the requirements of this line 17 article, the court shall impose fines on the jurisdiction, which shall line 18 be deposited into the Building Homes and Jobs Trust Fund. Any line 19 fine le vied pursuant to this paragraph shall be in a minimum line 20 amount of ten thousand dollars ($10,000) per month, but shall not line 21 exceed one hundred thousand dollars ($100,000) per month, except line 22 as pro vided in paragraphs (2) and (3). In the e vent that the line 23 jurisdiction fails to pay fines imposed by the court in full and on line 24 time, the court may require the Controller to intercept any available line 25 state and local funds and direct such funds to the Building Homes line 26 and Jobs Trust Fund to correct the jurisdiction’ s failure to pay . line 27 The intercept of the funds by the Controller for this purpose shall line 28 not violate any provision of the California Constitution. line 29 (2) If the jurisdiction has not complied with the order or line 30 judgment after three months follo wing the imposition of fees line 31 described in paragraph (1), the court shall conduct a status line 32 conference. Following the status conference, if the court finds that line 33 the fees imposed pursuant to paragraph (1) are insufficient to bring line 34 the jurisdiction into compliance with the order or judgment, the line 35 court may multiply the fine determined pursuant to paragraph (1) line 36 by a factor of three. In the e vent that the jurisdiction f ails to pay line 37 fines imposed by the court in full and on time, the court may line 38 require the Controller to intercept an y available state and local line 39 funds and direct such funds to the Building Homes and Jobs Trust line 40 Fund to correct the jurisdiction’ s failure to pay. The intercept of 97 — 8 — AB 1886
line 1 the funds by the Controller for this purpose shall not violate an y line 2 provision of the California Constitution.
line 3 (3) If the jurisdiction has not complied with the order or line 4 judgment six months follo wing the imposition of fees described line 5 in paragraph (1), the court shall conduct a status conference. Upon line 6 a determination that the jurisdiction failed to comply with the order line 7 or judgment, the court may impose the following:
line 8 (A) If the court finds that the fees imposed pursuant to line 9 paragraphs (1) and (2) are insufficient to bring the jurisdiction into line 10 compliance with the order or judgment, the court may multiply line 11 the fine determined pursuant to paragraph (1) by a f actor of six. line 12 In the event that the jurisdiction fails to pay fines imposed by the line 13 court in full and on time, the court may require the Controller to line 14 intercept any available state and local funds and direct such funds line 15 to the Building Homes and Jobs Trust Fund to correct the line 16 jurisdiction’s f ailure to pay . The intercept of the funds by the line 17 Controller for this purpose shall not violate an y provision of the line 18 California Constitution.
line 19 (B) The court may order remedies available pursuant to Section line 20 564 of the Code of Civil Procedure, under which the agent of the line 21 court may tak e all go vernmental actions necessary to bring the line 22 jurisdiction’s housing element into substantial compliance pursuant line 23 to this article in order to remedy identified deficiencies. The court line 24 shall determine whether the housing element of the jurisdiction line 25 substantially complies with this article and, once the court makes line 26 that determination, it shall have the same force and effect, for all line 27 purposes, as the department’ s determination that the housing line 28 element substantially complies with this article. An agent appointed line 29 pursuant to this paragraph shall ha ve e xpertise in planning in line 30 California.
line 31 (4) This subdivision does not limit a court’s discretion to apply line 32 any and all remedies in an action or special proceeding for a line 33 violation of any law identified in subdivision (j). line 34 (m) In determining the application of the remedies a vailable line 35 under subdivision (l), the court shall consider whether there are line 36 any mitigating circumstances delaying the jurisdiction from coming line 37 into compliance with state housing la w. The court may consider line 38 whether a city, county, or city and county is making a good f aith line 39 effort to come into substantial compliance or is facing substantial line 40 undue hardships.
97 AB 1886 — 9 —
line 1 (n) Nothing in this section shall limit the authority of the office line 2 of the Attorney General to bring a suit to enforce state la w in an line 3 independent capacity. The office of the Attorney General may seek line 4 all remedies available under law including those set forth in this line 5 section.
line 6 (o) Notwithstanding Sections 11040 and 11042, if the Attorney line 7 General declines to represent the department in an y action or line 8 special proceeding brought pursuant to a notice or referral under line 9 subdivision (j), the department may appoint or contract with other line 10 counsel for purposes of representing the department in the action line 11 or special proceeding.
line 12 (p) Notwithstanding any other provision of law, the statute of line 13 limitations set forth in subdivision (a) of Section 338 of the Code line 14 of Civil Procedure shall apply to any action or special proceeding line 15 brought by the office of the Attorney General or pursuant to a line 16 notice or referral under subdi vision (j), or by the department line 17 pursuant to subdivision (o).
line 18 SECTION 1. Section 65585 of the Government Code is line 19 amended to read:
line 20 65585. (a) In the preparation of its housing element, each city line 21 and county shall consider the guidelines adopted by the department line 22 pursuant to Section 50459 of the Health and Safety Code. Those line 23 guidelines shall be advisory to each city or county in the line 24 preparation of its housing element.
line 25 (b) (1) At least 90 days prior to adoption of a re vision of its line 26 housing element pursuant to subdivision (e) of Section 65588, or line 27 at least 60 days prior to the adoption of a subsequent amendment line 28 to this element, the planning agency shall submit a draft element line 29 revision or draft amendment to the department. The local line 30 government of the planning agenc y shall mak e the first draft line 31 revision of a housing element available for public comment for at line 32 least 30 days and, if an y comments are recei ved, the local line 33 government shall take at least 10 b usiness days after the 30-day line 34 public comment period to consider and incorporate public line 35 comments into the draft re vision prior to submitting it to the line 36 department. F or an y subsequent draft re vision, the local line 37 government shall post the draft revision on its internet website and line 38 shall email a link to the draft re vision to all indi viduals and line 39 organizations that ha ve previously requested notices relating to 97 — 10 — AB 1886
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 that e xplain the reasons the le gislative body 97 AB 1886 — 11 —
line 1 believes that the draft element or draft amendment substantially line 2 complies with this article despite the findings of the department. line 3 (g) Promptly follo wing the adoption of its element or line 4 amendment, the planning agenc y shall submit a cop y to of the line 5 adopted element or amendment and any findings made pur suant line 6 to paragraph (2) of subdivision (f) to the department. line 7 (h) (1) The department shall, within 60 days, re view adopted line 8 housing elements or amendments and any findings pur suant to line 9 paragraph (2) of subdivision (f), make a finding as to whether the line 10 adopted element or amendment is in substantial compliance with line 11 this article, and report its findings to the planning agency. line 12 (2) (A) A housing element or amendment shall be consider ed line 13 to be in substantial compliance with this article when both of the line 14 following conditions are satisfied:
line 15 (i) The local agency adopts the housing element or amendment line 16 in accordance with this section.
line 17 (ii) The department or a court of competent jurisdiction line 18 determines the adopted housing element or amendment to be in line 19 substantial compliance with this article.
line 20 (B) A housing element or amendment shall continue to be line 21 considered in substantial compliance with this article until either line 22 of the following occur:
line 23 (i) The department or a court of competent jurisdiction line 24 determines that the adopted housing element or amendment is no line 25 longer in substantial compliance with this article. line 26 (ii) The end of the applicable housing element cycle. line 27 (C) This par agraph does not constitute a c hange in, b ut is line 28 declaratory of, existing law.
line 29 (3) In any legal proceeding initiated to enforce the provisions line 30 of this article , the department’ s findings made pur suant to this line 31 subdivision and subdivision (b) shall cr eate a r ebuttable line 32 presumption of validity as to whether the adopted element or line 33 amendment substantially complies with this article. line 34 (i) (1) (A) The department shall re view any action or f ailure line 35 to act by the city, county, or city and county that it determines is line 36 inconsistent with an adopted housing element or Section 65583, line 37 including any failure to implement any program actions included line 38 in the housing element pursuant to Section 65583. The department line 39 shall issue written findings to the city, county, or city and county line 40 as to whether the action or f ailure to act substantially complies 97 — 12 — AB 1886
line 1 with this article, and provide a reasonable time no longer than 30 line 2 days for the city , county, or city and county to respond to the line 3 findings before taking any other action authorized by this section, line 4 including the action authorized by subparagraph (B). line 5 (B) If the department finds that the action or f ailure to act by line 6 the city, county, or city and county does not substantially comply line 7 with this article, and if it has issued findings pursuant to this section line 8 that an amendment to the housing element substantially complies line 9 with this article, the department may re voke its findings until it line 10 determines that the city, county, or city and county has come into line 11 compliance with this article.
line 12 (2) The department may consult with an y local go vernment, line 13 public agency, group, or person, and shall recei ve and consider line 14 any written comments from any public agency, group, or person, line 15 regarding the action or f ailure to act by the city , county, or city line 16 and county described in paragraph (1), in determining whether the line 17 housing element substantially complies with this article. line 18 (j) The department shall notify the city , county, or city and line 19 county and may notify the office of the Attorney General that the line 20 city, county, or city and county is in violation of state la w if the line 21 department finds that the housing element or an amendment to this line 22 element, or an y action or f ailure to act described in subdi vision line 23 (i), does not substantially comply with this article or that any local line 24 government has taken an action in violation of the following:
line 25 (1) Housing Accountability Act (Section 65589.5). line 26 (2) Section 65863.
line 27 (3) Chapter 4.3 (commencing with Section 65915). line 28 (4) Section 65008.
line 29 (5) Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019, line 30 Sections 65941.1, 65943, and 66300).
line 31 (6) Section 8899.50.
line 32 (7) Section 65913.4.
line 33 (8) Article 11 (commencing with Section 65650). line 34 (9) Article 12 (commencing with Section 65660). line 35 (10) Section 65913.11.
line 36 (11) Section 65400.
line 37 (12) Section 65863.2.
line 38 (13) Chapter 4.1 (commencing with Section 65912.100). line 39 (14) Section 65905.5.
line 40 (15) Chapter 13 (commencing with Section 66310). 97 AB 1886 — 13 —
line 1 (16) Section 65852.21.
line 2 (17) Section 65852.24.
line 3 (18) Section 66411.7.
line 4 (19) Section 65913.16.
line 5 (20) Article 2 (commencing with Section 66300.5) of Chapter line 6 12.
line 7 (21) Section 65852.28.
line 8 (22) Section 65913.4.5.
line 9 (23) Section 66499.41.
line 10 (k) Commencing July 1, 2019, prior to the Attorney General line 11 bringing any suit for a violation of the pro visions identified in line 12 subdivision (j) related to housing element compliance and seeking line 13 remedies available pursuant to this subdi vision, the department line 14 shall offer the jurisdiction the opportunity for tw o meetings in line 15 person or via telephone to discuss the violation, and shall provide line 16 the jurisdiction written findings re garding the violation. This line 17 paragraph does not af fect any action filed prior to the ef fective line 18 date of this section. The requirements set forth in this subdivision line 19 do not apply to an y suits brought for a violation or violations of line 20 paragraphs (1) and (3) to (9), inclusive, of subdivision (j). line 21 (l) In any action or special proceeding brought by the Attorney line 22 General relating to housing element compliance pursuant to a line 23 notice or referral under subdivision (j), the Attorney General may line 24 request, upon a finding of the court that the housing element does line 25 not substantially comply with the requirements of this article line 26 pursuant to this section, that the court issue an order or judgment line 27 directing the jurisdiction to bring its housing element into line 28 substantial compliance with the requirements of this article. The line 29 court shall retain jurisdiction to ensure that its order or judgment line 30 is carried out. If a court determines that the housing element of line 31 the jurisdiction substantially complies with this article, it shall line 32 have the same force and effect, for purposes of eligibility for any line 33 financial assistance that requires a housing element in substantial line 34 compliance and for purposes of an y incentives pro vided under line 35 Section 65589.9, as a determination by the department that the line 36 housing element substantially complies with this article. line 37 (1) If the jurisdiction has not complied with the order or line 38 judgment after 12 months, the court shall conduct a status line 39 conference. Following the status conference, upon a determination line 40 that the jurisdiction f ailed to comply with the order or judgment 97 — 14 — AB 1886
line 1 compelling substantial compliance with the requirements of this line 2 article, the court shall impose fines on the jurisdiction, which shall line 3 be deposited into the Building Homes and Jobs Trust Fund. Any line 4 fine le vied pursuant to this paragraph shall be in a minimum line 5 amount of ten thousand dollars ($10,000) per month, but shall not line 6 exceed one hundred thousand dollars ($100,000) per month, except line 7 as pro vided in paragraphs (2) and (3). In the e vent that the line 8 jurisdiction fails to pay fines imposed by the court in full and on line 9 time, the court may require the Controller to intercept any available line 10 state and local funds and direct such funds to the Building Homes line 11 and Jobs Trust Fund to correct the jurisdiction’ s failure to pay . line 12 The intercept of the funds by the Controller for this purpose shall line 13 not violate any provision of the California Constitution. line 14 (2) If the jurisdiction has not complied with the order or line 15 judgment after three months follo wing the imposition of fees line 16 described in paragraph (1), the court shall conduct a status line 17 conference. Following the status conference, if the court finds that line 18 the fees imposed pursuant to paragraph (1) are insufficient to bring line 19 the jurisdiction into compliance with the order or judgment, the line 20 court may multiply the fine determined pursuant to paragraph (1) line 21 by a factor of three. In the e vent that the jurisdiction f ails to pay line 22 fines imposed by the court in full and on time, the court may line 23 require the Controller to intercept an y available state and local line 24 funds and direct such funds to the Building Homes and Jobs Trust line 25 Fund to correct the jurisdiction’ s failure to pay. The intercept of line 26 the funds by the Controller for this purpose shall not violate an y line 27 provision of the California Constitution.
line 28 (3) If the jurisdiction has not complied with the order or line 29 judgment six months follo wing the imposition of fees described line 30 in paragraph (1), the court shall conduct a status conference. Upon line 31 a determination that the jurisdiction failed to comply with the order line 32 or judgment, the court may impose the following:
line 33 (A) If the court finds that the fees imposed pursuant to line 34 paragraphs (1) and (2) are insufficient to bring the jurisdiction into line 35 compliance with the order or judgment, the court may multiply line 36 the fine determined pursuant to paragraph (1) by a f actor of six. line 37 In the event that the jurisdiction fails to pay fines imposed by the line 38 court in full and on time, the court may require the Controller to line 39 intercept any available state and local funds and direct such funds line 40 to the Building Homes and Jobs Trust Fund to correct the 97 AB 1886 — 15 —
line 1 jurisdiction’s f ailure to pay . The intercept of the funds by the line 2 Controller for this purpose shall not violate an y provision of the line 3 California Constitution.
line 4 (B) The court may order remedies available pursuant to Section line 5 564 of the Code of Civil Procedure, under which the agent of the line 6 court may tak e all go vernmental actions necessary to bring the line 7 jurisdiction’s housing element into substantial compliance pursuant line 8 to this article in order to remedy identified deficiencies. The court line 9 shall determine whether the housing element of the jurisdiction line 10 substantially complies with this article and, once the court makes line 11 that determination, it shall have the same force and effect, for all line 12 purposes, as the department’ s determination that the housing line 13 element substantially complies with this article. An agent appointed line 14 pursuant to this paragraph shall ha ve e xpertise in planning in line 15 California.
line 16 (4) This subdivision does not limit a court’s discretion to apply line 17 any and all remedies in an action or special proceeding for a line 18 violation of any law identified in subdivision (j). line 19 (m) In determining the application of the remedies a vailable line 20 under subdivision (l), the court shall consider whether there are line 21 any mitigating circumstances delaying the jurisdiction from coming line 22 into compliance with state housing la w. The court may consider line 23 whether a city, county, or city and county is making a good f aith line 24 effort to come into substantial compliance or is facing substantial line 25 undue hardships.
line 26 (n) Nothing in this section shall limit the authority of the office line 27 of the Attorney General to bring a suit to enforce state la w in an line 28 independent capacity. The office of the Attorney General may seek line 29 all remedies available under law including those set forth in this line 30 section.
line 31 (o) Notwithstanding Sections 11040 and 11042, if the Attorney line 32 General declines to represent the department in an y action or line 33 special proceeding brought pursuant to a notice or referral under line 34 subdivision (j), the department may appoint or contract with other line 35 counsel for purposes of representing the department in the action line 36 or special proceeding.
line 37 (p) Notwithstanding any other provision of law, the statute of line 38 limitations set forth in subdivision (a) of Section 338 of the Code line 39 of Civil Procedure shall apply to any action or special proceeding line 40 brought by the office of the Attorney General or pursuant to a 97 — 16 — AB 1886
line 1 notice or referral under subdi vision (j), or by the department line 2 pursuant to subdivision (o).
line 3 SEC. 2. Section 65589.5 of the Government Code is amended line 4 to read:
line 5 65589.5. (a) (1) The Legislature finds and declares all of the line 6 following:
line 7 (A) The lack of housing, including emer gency shelters, is a line 8 critical problem that threatens the economic, en vironmental, and line 9 social quality of life in California.
line 10 (B) California housing has become the most e xpensive in the line 11 nation. The excessive cost of the state’s housing supply is partially line 12 caused by activities and policies of many local governments that line 13 limit the approval of housing, increase the cost of land for housing, line 14 and require that high fees and e xactions be paid by producers of line 15 housing.
line 16 (C) Among the consequences of those actions are discrimination line 17 against low-income and minority households, lack of housing to line 18 support emplo yment gro wth, imbalance in jobs and housing, line 19 reduced mobility, urban spra wl, e xcessive commuting, and air line 20 quality deterioration.
line 21 (D) Many local governments do not give adequate attention to line 22 the economic, en vironmental, and social costs of decisions that line 23 result in disapproval of housing development projects, reduction line 24 in density of housing projects, and excessive standards for housing line 25 development projects.
line 26 (2) In enacting the amendments made to this section by the act line 27 adding this paragraph, the Le gislature further finds and declares line 28 the following:
line 29 (A) California has a housing supply and af fordability crisis of line 30 historic proportions. The consequences of f ailing to ef fectively line 31 and aggressi vely confront this crisis are hurting millions of line 32 Californians, robbing future generations of the chance to call line 33 California home, stifling economic opportunities for workers and line 34 businesses, worsening poverty and homelessness, and undermining line 35 the state’s environmental and climate objectives. line 36 (B) While the causes of this crisis are multiple and comple x, line 37 the absence of meaningful and ef fective polic y reforms to line 38 significantly enhance the approval and supply of housing affordable line 39 to Californians of all income levels is a key factor. 97 AB 1886 — 17 —
line 1 (C) The crisis has gro wn so acute in California that supply , line 2 demand, and affordability fundamentals are characterized in the line 3 negative: underserved demands, constrained supply, and protracted line 4 unaffordability.
line 5 (D) According to reports and data, California has accumulated line 6 an unmet housing backlog of nearly 2,000,000 units and must line 7 provide for at least 180,000 new units annually to keep pace with line 8 growth through 2025.
line 9 (E) California’s o verall home o wnership rate is at its lo west line 10 level since the 1940s. The state ranks 49th out of the 50 states in line 11 home ownership rates as well as in the supply of housing per capita. line 12 Only one-half of California’ s households are able to af ford the line 13 cost of housing in their local regions.
line 14 (F) Lack of supply and rising costs are compounding inequality line 15 and limiting advancement opportunities for many Californians. line 16 (G) The majority of California renters, more than 3,000,000 line 17 households, pay more than 30 percent of their income toward rent line 18 and nearly one-third, more than 1,500,000 households, pay more line 19 than 50 percent of their income toward rent.
line 20 (H) When Californians ha ve access to safe and af fordable line 21 housing, they have more money for food and health care; they are line 22 less lik ely to become homeless and in need of
line 23 government-subsidized services; their children do better in school; line 24 and b usinesses ha ve an easier time recruiting and retaining line 25 employees.
line 26 (I) An additional consequence of the state’s cumulative housing line 27 shortage is a significant increase in greenhouse g as emissions line 28 caused by the displacement and redirection of populations to states line 29 with greater housing opportunities, particularly w orking- and line 30 middle-class households. California’s cumulative housing shortfall line 31 therefore has not only national b ut international en vironmental line 32 consequences.
line 33 (J) California’s housing picture has reached a crisis of historic line 34 proportions despite the fact that, for decades, the Legislature has line 35 enacted numerous statutes intended to significantly increase the line 36 approval, development, and affordability of housing for all income line 37 levels, including this section.
line 38 (K) The Legislature’s intent in enacting this section in 1982 and line 39 in expanding its provisions since then was to significantly increase line 40 the approval and construction of ne w housing for all economic 97 — 18 — AB 1886
line 1 segments of California’ s communities by meaningfully and line 2 effectively curbing the capability of local go vernments to den y, line 3 reduce the density for, or render infeasible housing de velopment line 4 projects and emergency shelters. That intent has not been fulfilled. line 5 (L) It is the polic y of the state that this section be interpreted line 6 and implemented in a manner to afford the fullest possible weight line 7 to the interest of, and the approval and provision of, housing. line 8 (3) It is the intent of the Le gislature that the conditions that line 9 would have a specific, adverse impact upon the public health and line 10 safety, as described in paragraph (2) of subdi vision (d) and line 11 paragraph (1) of subdivision (j), arise infrequently. line 12 (b) It is the policy of the state that a local government not reject line 13 or mak e infeasible housing de velopment projects, including line 14 emergency shelters, that contribute to meeting the need determined line 15 pursuant to this article without a thorough analysis of the economic, line 16 social, and en vironmental ef fects of the action and without line 17 complying with subdivision (d).
line 18 (c) The Le gislature also recognizes that premature and line 19 unnecessary de velopment of agricultural lands for urban uses line 20 continues to have adverse effects on the availability of those lands line 21 for food and fiber production and on the economy of the state. line 22 Furthermore, it is the policy of the state that development should line 23 be guided a way from prime agricultural lands; therefore, in line 24 implementing this section, local jurisdictions should encourage, line 25 to the maximum extent practicable, in filling existing urban areas. line 26 (d) A local agency shall not disapprove a housing development line 27 project, including farmworker housing as defined in subdi vision line 28 (h) of Section 50199.7 of the Health and Safety Code, for v ery line 29 low, lo w-, or moderate-income households, or an emer gency line 30 shelter, or condition approval in a manner that renders the housing line 31 development project infeasible for development for the use of very line 32 low, lo w-, or moderate-income households, or an emer gency line 33 shelter, including through the use of design re view standards, line 34 unless it makes written findings, based upon a preponderance of line 35 the evidence in the record, as to one of the following:
line 36 (1) The jurisdiction has adopted a housing element pursuant to line 37 this article that has been revised in accordance with Section 65588, line 38 is in substantial compliance with this article, and the jurisdiction line 39 has met or e xceeded its share of the re gional housing need line 40 allocation pursuant to Section 65584 for the planning period for 97 AB 1886 — 19 —
line 1 the income category proposed for the housing development project, line 2 provided that any disapproval or conditional approval shall not be line 3 based on any of the reasons prohibited by Section 65008. If the line 4 housing development project includes a mix of income categories, line 5 and the jurisdiction has not met or exceeded its share of the regional line 6 housing need for one or more of those cate gories, then this line 7 paragraph shall not be used to disapprove or conditionally approve line 8 the housing development project. The share of the regional housing line 9 need met by the jurisdiction shall be calculated consistently with line 10 the forms and definitions that may be adopted by the Department line 11 of Housing and Community De velopment pursuant to Section line 12 65400. In the case of an emer gency shelter, the jurisdiction shall line 13 have met or exceeded the need for emergency shelter, as identified line 14 pursuant to paragraph (7) of subdivision (a) of Section 65583. Any line 15 disapproval or conditional appro val pursuant to this paragraph line 16 shall be in accordance with applicable law, rule, or standards. line 17 (2) The housing development project or emer gency shelter as line 18 proposed would have a specific, adv erse impact upon the public line 19 health or safety, and there is no feasible method to satisf actorily line 20 mitigate or avoid the specific, adv erse impact without rendering line 21 the de velopment unaf fordable to lo w- and moderate-income line 22 households or rendering the development of the emergency shelter line 23 financially infeasible. As used in this paragraph, a “specific, line 24 adverse impact” means a significant, quantifiable, direct, and line 25 unavoidable impact, based on objective, identified written public line 26 health or safety standards, policies, or conditions as the y existed line 27 on the date the application was deemed complete. The following line 28 shall not constitute a specific, adv erse impact upon the public line 29 health or safety:
line 30 (A) Inconsistency with the zoning ordinance or general plan line 31 land use designation.
line 32 (B) The eligibility to claim a welf are e xemption under line 33 subdivision (g) of Section 214 of the Revenue and Taxation Code. line 34 (3) The denial of the housing development project or imposition line 35 of conditions is required in order to comply with specific state or line 36 federal law, and there is no feasible method to comply without line 37 rendering the de velopment unaf fordable to lo w- and line 38 moderate-income households or rendering the development of the line 39 emergency shelter financially infeasible.
97 — 20 — AB 1886
line 1 (4) The housing de velopment project or emer gency shelter is line 2 proposed on land zoned for agriculture or resource preserv ation line 3 that is surrounded on at least tw o sides by land being used for line 4 agricultural or resource preservation purposes, or which does not line 5 have adequate water or wastewater facilities to serve the project. line 6 (5) The housing de velopment project or emer gency shelter is line 7 inconsistent with both the jurisdiction’ s zoning ordinance and line 8 general plan land use designation as specified in an y element of line 9 the general plan as it e xisted on the date the application w as line 10 deemed complete, and the jurisdiction has adopted a re vised line 11 housing element in accordance with Section 65588 that is in line 12 substantial compliance with this article. F or purposes of this line 13 section, a change to the zoning ordinance or general plan land use line 14 designation subsequent to the date the application w as deemed line 15 complete shall not constitute a v alid basis to disappro ve or line 16 condition appro val of the housing de velopment project or line 17 emergency shelter.
line 18 (A) This paragraph cannot be utilized to disappro ve or line 19 conditionally approve a housing development project if the housing line 20 development project is proposed on a site that is identified as line 21 suitable or a vailable for v ery lo w, lo w-, or moderate-income line 22 households in the jurisdiction’ s housing element, and consistent line 23 with the density specified in the housing element, e ven though it line 24 is inconsistent with both the jurisdiction’ s zoning ordinance and line 25 general plan land use designation.
line 26 (B) If the local agency has failed to identify in the inventory of line 27 land in its housing element sites that can be developed for housing line 28 within the planning period and are sufficient to pro vide for the line 29 jurisdiction’s share of the re gional housing need for all income line 30 levels pursuant to Section 65584, then this paragraph shall not be line 31 utilized to disappro ve or conditionally appro ve a housing line 32 development project proposed for a site designated in any element line 33 of the general plan for residential uses or designated in any element line 34 of the general plan for commercial uses if residential uses are line 35 permitted or conditionally permitted within commercial line 36 designations. In any action in court, the b urden of proof shall be line 37 on the local agency to show that its housing element does identify line 38 adequate sites with appropriate zoning and development standards line 39 and with services and facilities to accommodate the local agency’s 97 AB 1886 — 21 —
line 1 share of the re gional housing need for the v ery low, low-, and line 2 moderate-income categories.
line 3 (C) If the local agenc y has f ailed to identify a zone or zones line 4 where emergency shelters are allowed as a permitted use without line 5 a conditional use or other discretionary permit, has f ailed to line 6 demonstrate that the identified zone or zones include sufficient line 7 capacity to accommodate the need for emergency shelter identified line 8 in paragraph (7) of subdivision (a) of Section 65583, or has failed line 9 to demonstrate that the identified zone or zones can accommodate line 10 at least one emer gency shelter, as required by paragraph (4) of line 11 subdivision (a) of Section 65583, then this paragraph shall not be line 12 utilized to disappro ve or conditionally appro ve an emer gency line 13 shelter proposed for a site designated in any element of the general line 14 plan for industrial, commercial, or multifamily residential uses. In line 15 any action in court, the burden of proof shall be on the local agency line 16 to show that its housing element does satisfy the requirements of line 17 paragraph (4) of subdivision (a) of Section 65583. line 18 (e) Nothing in this section shall be construed to relieve the local line 19 agency from complying with the congestion management program line 20 required by Chapter 2.6 (commencing with Section 65088) of line 21 Division 1 of Title 7 or the California Coastal Act of 1976 line 22 (Division 20 (commencing with Section 30000) of the Public line 23 Resources Code). Neither shall an ything in this section be line 24 construed to relieve the local agency from making one or more of line 25 the findings required pursuant to Section 21081 of the Public line 26 Resources Code or otherwise complying with the California line 27 Environmental Quality Act (Division 13 (commencing with Section line 28 21000) of the Public Resources Code).
line 29 (f) (1) Except as pro vided in subdi vision (o), nothing in this line 30 section shall be construed to prohibit a local agency from requiring line 31 the housing de velopment project to comply with objecti ve, line 32 quantifiable, written de velopment standards, conditions, and line 33 policies appropriate to, and consistent with, meeting the line 34 jurisdiction’s share of the regional housing need pursuant to Section line 35 65584. Ho wever, the de velopment standards, conditions, and line 36 policies shall be applied to f acilitate and accommodate line 37 development at the density permitted on the site and proposed by line 38 the development.
line 39 (2) Except as provided in subdivision (o), nothing in this section line 40 shall be construed to prohibit a local agenc y from requiring an 97 — 22 — AB 1886
line 1 emergency shelter project to comply with objective, quantifiable, line 2 written development standards, conditions, and policies that are line 3 consistent with paragraph (4) of subdivision (a) of Section 65583 line 4 and appropriate to, and consistent with, meeting the jurisdiction’s line 5 need for emer gency shelter, as identified pursuant to paragraph line 6 (7) of subdivision (a) of Section 65583. However, the development line 7 standards, conditions, and policies shall be applied by the local line 8 agency to f acilitate and accommodate the de velopment of the line 9 emergency shelter project.
line 10 (3) Except as provided in subdivision (o), nothing in this section line 11 shall be construed to prohibit a local agenc y from imposing fees line 12 and other exactions otherwise authorized by law that are essential line 13 to provide necessary public services and f acilities to the housing line 14 development project or emergency shelter.
line 15 (4) For purposes of this section, a housing development project line 16 or emergency shelter shall be deemed consistent, compliant, and line 17 in conformity with an applicable plan, program, policy, ordinance, line 18 standard, requirement, or other similar pro vision if there is line 19 substantial e vidence that w ould allo w a reasonable person to line 20 conclude that the housing de velopment project or emer gency line 21 shelter is consistent, compliant, or in conformity. line 22 (g) This section shall be applicable to charter cities because the line 23 Legislature finds that the lack of housing, including emer gency line 24 shelter, is a critical statewide problem.
line 25 (h) The follo wing definitions apply for the purposes of this line 26 section:
line 27 (1) “Feasible” means capable of being accomplished in a line 28 successful manner within a reasonable period of time, taking into line 29 account economic, environmental, social, and technological factors. line 30 (2) “Housing development project” means a use consisting of line 31 any of the following:
line 32 (A) Residential units only.
line 33 (B) Mixed-use de velopments consisting of residential and line 34 nonresidential uses with at least tw o-thirds of the square footage line 35 designated for residential use.
line 36 (C) Transitional housing or supportive housing. line 37 (3) “Housing for v ery lo w, lo w-, or moderate-income line 38 households” means that either (A) at least 20 percent of the total line 39 units shall be sold or rented to lower income households, as defined line 40 in Section 50079.5 of the Health and Safety Code, or (B) 100 97 AB 1886 — 23 —
line 1 percent of the units shall be sold or rented to persons and families line 2 of moderate income as defined in Section 50093 of the Health and line 3 Safety Code, or persons and families of middle income, as defined line 4 in Section 65008 of this code. Housing units tar geted for lo wer line 5 income households shall be made available at a monthly housing line 6 cost that does not exceed 30 percent of 60 percent of area median line 7 income with adjustments for household size made in accordance line 8 with the adjustment factors on which the lower income eligibility line 9 limits are based. Housing units tar geted for persons and f amilies line 10 of moderate income shall be made available at a monthly housing line 11 cost that does not exceed 30 percent of 100 percent of area median line 12 income with adjustments for household size made in accordance line 13 with the adjustment f actors on which the moderate-income line 14 eligibility limits are based.
line 15 (4) “Area median income” means area median income as line 16 periodically established by the Department of Housing and line 17 Community Development pursuant to Section 50093 of the Health line 18 and Safety Code. The de veloper shall pro vide sufficient le gal line 19 commitments to ensure continued availability of units for very low line 20 or low-income households in accordance with the pro visions of line 21 this subdivision for 30 years.
line 22 (5) Notwithstanding an y other la w, until January 1, 2030, line 23 “deemed complete” means that the applicant has submitted a line 24 preliminary application pursuant to Section 65941.1 or , if the line 25 applicant has not submitted a preliminary application, has line 26 submitted a complete application pursuant to Section 65943. line 27 (6) “Disapprove the housing development project” includes any line 28 instance in which a local agency does any of the following:
line 29 (A) Votes on a proposed housing de velopment project line 30 application and the application is disappro ved, including an y line 31 required land use appro vals or entitlements necessary for the line 32 issuance of a building permit.
line 33 (B) Fails to comply with the time periods specified in line 34 subdivision (a) of Section 65950. An extension of time pursuant line 35 to Article 5 (commencing with Section 65950) shall be deemed to line 36 be an extension of time pursuant to this paragraph. line 37 (C) Fails to meet the time limits specified in Section 65913.3. line 38 (D) (i) Fails to make a determination of whether the project is line 39 exempt from the California Environmental Quality Act (Division line 40 13 (commencing with Section 21000) of the Public Resources 97 — 24 — AB 1886
line 1 Code), or commits an ab use of discretion, as defined in this line 2 subparagraph, if all of the following conditions are satisfied:
line 3 (I) There is substantial evidence in the record before the local line 4 agency that the housing development project is not located in either line 5 of the following:
line 6 (ia) On a site specified in subparagraphs (A) to (C), inclusi ve, line 7 or subparagraphs (E) to (K), inclusi ve, of paragraph (6) of line 8 subdivision (a) of Section 65913.4.
line 9 (ib) Within a very high fire hazard severity zone, as determined line 10 by the Department of F orestry and Fire Protection pursuant to line 11 Section 51178, or within a high or v ery high fire hazard severity line 12 zone as indicated on maps adopted by the Department of Forestry line 13 and Fire Protection pursuant to Section 4202 of the Public line 14 Resources Code.
line 15 (II) The housing development project is located on a legal parcel line 16 or parcels within an urbanized area and meets one or more of the line 17 following criteria:
line 18 (ia) The housing development project is located within one-half line 19 mile walking distance to either a high-quality transit corridor or a line 20 major transit stop.
line 21 (ib) The housing development project is located in a v ery low line 22 vehicle travel area.
line 23 (ic) The housing development project is proximal to six or more line 24 amenities pursuant to subclause (IV) of clause (ii) as of the date line 25 of submission of the application for the project. line 26 (id) Parcels that are de veloped with urban uses adjoin at least line 27 75 percent of the perimeter of the project site or at least three sides line 28 of a four -sided project site. F or purposes of this clause, parcels line 29 that are only separated by a street or highway shall be considered line 30 to be adjoined.
line 31 (III) The density of the housing de velopment project meets or line 32 exceeds 15 dwelling units per acre.
line 33 (IV) Both of the following criteria are met:
line 34 (ia) There is substantial evidence in the record before the local line 35 agency that the housing de velopment project is eligible for an line 36 exemption sought by the applicant.
line 37 (ib) If the e xemption sought by the applicant is subject to an line 38 exception under the Guidelines for Implementation of the line 39 California Environmental Quality Act (Chapter 3 (commencing line 40 with Section 15000) of Di vision 6 of Title 14 of the California 97 AB 1886 — 25 —
line 1 Code of Regulations), there is substantial e vidence in the record line 2 before the local agenc y that the application of that cate gorical line 3 exemption is not barred by one of the e xceptions set forth in line 4 Section 15300.2 of those guidelines.
line 5 (V) (ia) The applicant has gi ven timely written notice to the line 6 local agency of the action or inaction that the applicant belie ves line 7 constitutes a f ailure to mak e a determination or an ab use of line 8 discretion, as defined in this subparagraph, and the local agenc y line 9 did not mak e a la wful determination within 90 days of the line 10 applicant’s written notice. The applicant’ s written notice shall line 11 contain all of the following:
line 12 (Ia) The information specified in paragraphs (1), (2), (5), and line 13 (6) of subdivision (a) of Section 15062 of Title 14 of the California line 14 Code of Regulations.
line 15 (Ib) A citation to the section of Title 14 of the California Code line 16 of Regulations or the statute under which the applicant asserts that line 17 the project is exempt.
line 18 (Ic) A brief statement of reasons supporting the assertion that line 19 the project is exempt.
line 20 (Id) A cop y of the e xcerpts from the record constituting line 21 substantial e vidence that the criteria of subclauses (I) to (IV), line 22 inclusive, are satisfied.
line 23 (ib) Within fiv e w orking days of recei ving the applicant’ s line 24 written notice required by sub-subclause (ia), the local agenc y line 25 shall file the notice with the county clerk of each county in which line 26 the project will be located. The county clerk shall post the notice line 27 and make it available for public inspection in the manner set forth line 28 in subdivision (c) of Section 21152 of the Public Resources Code. line 29 Compliance with this sub-subclause is not a condition that must line 30 be satisfied in order to find that the local agency has disapproved line 31 the housing development project under this subparagraph. line 32 (ic) The local agency may, by providing a written response to line 33 the applicant within 90 additional days of the applicant’ s written line 34 notice, extend the time period to make a lawful determination by line 35 no more than 90 days if the extension is necessary to determine if line 36 there is substantial e vidence in the record that the housing line 37 development project is eligible for the e xemption sought by the line 38 applicant.
line 39 (id) If the local agenc y has given the applicant written notice line 40 of the local agency’s determination that the project is not exempt, 97 — 26 — AB 1886
line 1 the applicant’s notice shall be deemed timely if and only if it is line 2 delivered to the local agenc y within 35 days of the date that the line 3 local agenc y g ave the applicant notice of the local agenc y’s line 4 determination.
line 5 (ie) If the local agency has not given the applicant the written line 6 notice described in sub-subclause (id), the applicant’s notice shall line 7 be deemed timely if gi ven after 60 days from the date on which line 8 the project application has been received and accepted as complete line 9 by the lead agency, or 60 days from the date on which the project line 10 application has been determined or deemed to be complete within line 11 the meaning of Section 65943, whichever is earlier. line 12 (ii) For purposes of this subparagraph, the following definitions line 13 apply:
line 14 (I) “Abuse of discretion” means that the conditions set forth in line 15 subclauses (I) to (IV), inclusive, of clause (i) are satisfied, but the line 16 local agency does not determine that the project is e xempt from line 17 the California En vironmental Quality Act (Di vision 13 line 18 (commencing with Section 21000) of the Public Resources Code). line 19 This subclause sets forth the e xclusive definition of “ab use of line 20 discretion” for purposes of this subparagraph.
line 21 (II) “High-quality transit corridor” has the same meaning defined line 22 in subdivision (b) of Section 21155 of the Public Resources Code. line 23 (III) “Major transit stop” has the same meaning as defined in line 24 Section 21064.3 of the Public Resources Code.
line 25 (IV) “Proximal” to an amenity means either of the following:
line 26 (ia) Within one-half mile of either of the following amenities:
line 27 (Ia) A bus station.
line 28 (Ib) A ferry terminal.
line 29 (ib) Within one mile, or for a parcel in a rural area, as defined line 30 in Section 50199.21 of the Health and Safety Code, within tw o line 31 miles, of any of the following amenities:
line 32 (Ia) A supermarket or grocery store.
line 33 (Ib) A public park.
line 34 (Ic) A community center.
line 35 (Id) A pharmacy or drugstore.
line 36 (Ie) A medical clinic or hospital.
line 37 (If) A public library.
line 38 (Ig) A school that maintains a kindergarten or any of grades 1 line 39 to 12, inclusive.
97 AB 1886 — 27 —
line 1 (V) “Urbanized area” has the same meaning as defined in line 2 Section 21071 of the Public Resources Code.
line 3 (VI) (ia) “Very low vehicle travel area” means an urbanized line 4 area, as designated by the United States Census Bureau, where the line 5 existing residential development generates vehicle miles traveled line 6 per capita that is below 85 percent of either regional vehicle miles line 7 traveled per capita or city vehicle miles traveled per capita. line 8 (ib) For purposes of sub-subclause (ia), “area” may include a line 9 travel analysis zone, hexagon, or grid.
line 10 (ic) For the purposes of determining “re gional vehicle miles line 11 traveled per capita” pursuant to sub-subclause (ia), a “re gion” is line 12 the entirety of incorporated and unincorporated areas governed by line 13 a multicounty or single-county metropolitan planning organization, line 14 or the entirety of the incorporated and unincorporated areas of an line 15 individual county that is not part of a metropolitan planning line 16 organization.
line 17 (iii) This subparagraph shall not be construed to require a local line 18 agency to determine that a project is exempt if, on the record before line 19 the local agency, the project is not eligible for exemption. line 20 (iv) This subparagraph shall become inoperative on January 1, line 21 2031.
line 22 (E) Fails to adopt a ne gative declaration or addendum for the line 23 project, to certify an environmental impact report for the project, line 24 or to approve another comparable environmental document, such line 25 as a sustainable communities environmental assessment pursuant line 26 to Section 21155.2 of the Public Resources Code, as required line 27 pursuant to the California En vironmental Quality Act (Division line 28 13 (commencing with Section 21000) of the Public Resources line 29 Code), if all of the following conditions are satisfied:
line 30 (i) There is substantial evidence in the record before the local line 31 agency that the site of the housing de velopment project is not line 32 located on either of the following:
line 33 (I) On a site specified in subparagraphs (A) to (C), inclusi ve, line 34 or subparagraphs (E) to (K), inclusi ve, of paragraph (6) of line 35 subdivision (a) of Section 65913.4.
line 36 (II) Within a very high fire hazard severity zone, as determined line 37 by the Department of F orestry and Fire Protection pursuant to line 38 Section 51178, or within a high or v ery high fire hazard severity line 39 zone as indicated on maps adopted by the Department of Forestry 97 — 28 — AB 1886
line 1 and Fire Protection pursuant to Section 4202 of the Public line 2 Resources Code.
line 3 (ii) The housing development project is located on a legal parcel line 4 or parcels within an urbanized area and meets one or more of the line 5 following criteria:
line 6 (I) The housing development project is located within one-half line 7 mile walking distance to either a high-quality transit corridor or a line 8 major transit stop.
line 9 (II) The housing development project is located in a v ery low line 10 vehicle travel area.
line 11 (III) The housing development project is proximal to six or more line 12 amenities pursuant to subclause (IV) of clause (vii) as of the date line 13 of submission of the application for the project. line 14 (IV) Parcels that are developed with urban uses adjoin at least line 15 75 percent of the perimeter of the project site or at least three sides line 16 of a four -sided project site. F or purposes of this clause, parcels line 17 that are only separated by a street or highway shall be considered line 18 to be adjoined.
line 19 (iii) The density of the housing de velopment project meets or line 20 exceeds 15 dwelling units per acre.
line 21 (iv) There has been prepared a negative declaration, addendum, line 22 environmental impact report, or comparable environmental review line 23 document that, if duly adopted, approved, or certified by the local line 24 agency, w ould satisfy the requirements of the California line 25 Environmental Quality Act (Division 13 (commencing with Section line 26 21000) of the Public Resources Code) with respect to the project. line 27 (v) The local agency or a body or official to which the agenc y line 28 has delegated authority to adopt, approve, or certify the negative line 29 declaration addendum, environmental impact report, or comparable line 30 environmental re view document has held a meeting at which line 31 adoption, approval, or certification of the en vironmental review line 32 document w as on the agenda and the en vironmental re view line 33 document could ha ve been adopted, appro ved, or certified, as line 34 applicable, but the agency did either of the following:
line 35 (I) Committed an ab use of discretion, as defined in this line 36 subparagraph.
line 37 (II) Failed to decide whether to require further study or to adopt, line 38 approve, or certify the environmental document. line 39 (vi) (I) The applicant has gi ven timely written notice to the line 40 local agency of the action or inaction that the applicant belie ves 97 AB 1886 — 29 —
line 1 constitutes a f ailure to decide or an ab use of discretion, and the line 2 local agency did not make a lawful determination about whether line 3 to adopt, approve, or certify the environmental review document line 4 within 90 days of the applicant’ s written notice. The applicant’s line 5 written notice shall include a copy of those excerpts from the record line 6 that constitute substantial evidence that the criteria of clauses (i) line 7 to (iv), inclusive, are satisfied.
line 8 (II) If the local agency has voted to require further study, rather line 9 than adopting, appro ving, or certifying the ne gative declaration, line 10 addendum, en vironmental impact report, or comparable line 11 environmental review document in the form it w as presented for line 12 the agency’s consideration, the applicant’s notice shall be deemed line 13 timely if and only if it is deli vered to the local agenc y within 35 line 14 days of the date that the local agenc y gave written notice of its line 15 decision to the applicant.
line 16 (III) If the local agency has not voted to require further study, line 17 rather than adopting, appro ving, or certifying the ne gative line 18 declaration, addendum, environmental impact report, or comparable line 19 environmental review document in the form it w as presented for line 20 the agency’s consideration, the applicant’s notice shall be deemed line 21 timely if given after the time period specified in Section 21151.5 line 22 of the Public Resources Code or another applicable pro vision of line 23 that code for completing the addendum, ne gative declaration, line 24 environmental impact report, or other comparable environmental line 25 review document, as applicable, has passed. If the Public Resources line 26 Code does not specifically describe the deadline to complete the line 27 applicable en vironmental document, a 180-day deadline is the line 28 applicable time period.
line 29 (vii) For purposes of this subparagraph, the following definitions line 30 apply:
line 31 (I) (ia) “Abuse of discretion” means either of the following:
line 32 (Ia) If the local agenc y fails to adopt a ne gative declaration, line 33 “abuse of discretion” means that the agency, in bad faith or without line 34 substantial evidence in the record to support a f air argument that line 35 further environmental study is necessary to identify or analyze line 36 potentially significant impacts on the ph ysical en vironment, line 37 decided to require further environmental study rather than adopting line 38 the negative declaration.
line 39 (Ib) If the local agenc y f ails to adopt an addendum for the line 40 project, certify an environmental impact report for the project, or 97 — 30 — AB 1886
line 1 approve another comparable environmental document, “abuse of line 2 discretion” means that the agenc y, in bad f aith or without line 3 substantial evidence in the record that further environmental study line 4 is legally required to identify or analyze potentially significant line 5 impacts on the ph ysical environment, decided to require further line 6 environmental study rather than adopting, approving, or certifying line 7 the environmental review document.
line 8 (ib) This subclause sets forth the exclusive definition of “abuse line 9 of discretion” for purposes of this subparagraph. line 10 (II) “High-quality transit corridor” has the same meaning defined line 11 in subdivision (b) of Section 21155 of the Public Resources Code. line 12 (III) “Major transit stop” has the same meaning as defined in line 13 Section 21064.3 of the Public Resources Code.
line 14 (IV) “Proximal” to an amenity means either of the following:
line 15 (ia) Within one-half mile of either of the following amenities:
line 16 (Ia) A bus station.
line 17 (Ib) A ferry terminal.
line 18 (ib) Within one mile, or for a parcel in a rural area, as defined line 19 in Section 50199.21 of the Health and Safety Code, within tw o line 20 miles, of any of the following amenities:
line 21 (Ia) A supermarket or grocery store.
line 22 (Ib) A public park.
line 23 (Ic) A community center.
line 24 (Id) A pharmacy or drugstore.
line 25 (Ie) A medical clinic or hospital.
line 26 (If) A public library.
line 27 (Ig) A school that maintains a kindergarten or any of grades 1 line 28 to 12, inclusive.
line 29 (V) “Urbanized area” has the same meaning as defined in line 30 Section 21071 of the Public Resources Code.
line 31 (VI) (ia) “Very low vehicle travel area” means an urbanized line 32 area, as designated by the United States Census Bureau, where the line 33 existing residential development generates vehicle miles traveled line 34 per capita that is below 85 percent of either regional vehicle miles line 35 traveled per capita or city vehicle miles traveled per capita. line 36 (ib) For purposes of sub-subclause (ia), “area” may include a line 37 travel analysis zone, hexagon, or grid.
line 38 (ic) For the purposes of determining “re gional vehicle miles line 39 traveled per capita” pursuant to sub-subclause (ia), a “re gion” is line 40 the entirety of incorporated and unincorporated areas governed by 97 AB 1886 — 31 —
line 1 a multicounty or single-county metropolitan planning organization, line 2 or the entirety of the incorporated and unincorporated areas of an line 3 individual county that is not part of a metropolitan planning line 4 organization.
line 5 (viii) This subparagraph shall become inoperati ve on January line 6 1, 2031.
line 7 (7) (A) For purposes of this section, “la wful determination” line 8 means any final decision about whether to approve or disapprove line 9 a statutory or cate gorical e xemption or a ne gative declaration, line 10 addendum, en vironmental impact report, or comparable line 11 environmental re view document under the California line 12 Environmental Quality Act (Division 13 (commencing with Section line 13 21000) of the Public Resources Code) that is not an ab use of line 14 discretion, as defined in clause (ii) of subparagraph (D) of line 15 paragraph (6) or clause (vii) of subparagraph (E) of paragraph (6). line 16 (B) This paragraph shall become inoperative on January 1, 2031. line 17 (8) “Lower density” includes any conditions that have the same line 18 effect or impact on the ability of the project to provide housing. line 19 (9) Until January 1, 2030, “objecti ve” means in volving no line 20 personal or subjecti ve judgment by a public official and being line 21 uniformly v erifiable by reference to an e xternal and uniform line 22 benchmark or criterion a vailable and kno wable by both the line 23 development applicant or proponent and the public official. line 24 (10) Notwithstanding an y other la w, until January 1, 2030, line 25 “determined to be complete” means that the applicant has submitted line 26 a complete application pursuant to Section 65943. line 27 (i) If any city, county, or city and county denies appro val or line 28 imposes conditions, including design changes, lo wer density, or line 29 a reduction of the percentage of a lot that may be occupied by a line 30 building or structure under the applicable planning and zoning in line 31 force at the time the housing development project’s application is line 32 complete, that have a substantial adverse effect on the viability or line 33 affordability of a housing de velopment for v ery lo w, lo w-, or line 34 moderate-income households, and the denial of the de velopment line 35 or the imposition of conditions on the development is the subject line 36 of a court action which challenges the denial or the imposition of line 37 conditions, then the burden of proof shall be on the local legislative line 38 body to sho w that its decision is consistent with the findings as line 39 described in subdivision (d), and that the findings are supported 97 — 32 — AB 1886
line 1 by a preponderance of the e vidence in the record, and with the line 2 requirements of subdivision (o).
line 3 (j) (1) When a proposed housing development project complies line 4 with applicable, objecti ve general plan, zoning, and subdi vision line 5 standards and criteria, including design review standards, in effect line 6 at the time that the application was deemed complete, but the local line 7 agency proposes to disapprove the project or to impose a condition line 8 that the project be developed at a lower density, the local agency line 9 shall base its decision regarding the proposed housing development line 10 project upon written findings supported by a preponderance of the line 11 evidence on the record that both of the following conditions exist:
line 12 (A) The housing de velopment project w ould have a specific, line 13 adverse impact upon the public health or safety unless the project line 14 is disapproved or approved upon the condition that the project be line 15 developed at a lower density. As used in this paragraph, a “specific, line 16 adverse impact” means a significant, quantifiable, direct, and line 17 unavoidable impact, based on objective, identified written public line 18 health or safety standards, policies, or conditions as the y existed line 19 on the date the application was deemed complete. line 20 (B) There is no feasible method to satisf actorily mitig ate or line 21 avoid the adverse impact identified pursuant to paragraph (1), other line 22 than the disappro val of the housing de velopment project or the line 23 approval of the project upon the condition that it be de veloped at line 24 a lower density.
line 25 (2) (A) If the local agenc y considers a proposed housing line 26 development project to be inconsistent, not in compliance, or not line 27 in conformity with an applicable plan, program, policy, ordinance, line 28 standard, requirement, or other similar pro vision as specified in line 29 this subdi vision, it shall pro vide the applicant with written line 30 documentation identifying the pro vision or pro visions, and an line 31 explanation of the reason or reasons it considers the housing line 32 development to be inconsistent, not in compliance, or not in line 33 conformity as follows:
line 34 (i) Within 30 days of the date that the application for the housing line 35 development project is determined to be complete, if the housing line 36 development project contains 150 or fewer housing units. line 37 (ii) Within 60 days of the date that the application for the line 38 housing development project is determined to be complete, if the line 39 housing development project contains more than 150 units. 97 AB 1886 — 33 —
line 1 (B) If the local agenc y f ails to pro vide the required line 2 documentation pursuant to subparagraph (A), the housing line 3 development project shall be deemed consistent, compliant, and line 4 in conformity with the applicable plan, program, policy, ordinance, line 5 standard, requirement, or other similar provision. line 6 (3) For purposes of this section, the receipt of a density bonus, line 7 incentive, concession, w aiver, or reduction of de velopment line 8 standards pursuant to Section 65915 shall not constitute a v alid line 9 basis on which to find a proposed housing development project is line 10 inconsistent, not in compliance, or not in conformity , with an line 11 applicable plan, program, policy, ordinance, standard, requirement, line 12 or other similar provision specified in this subdivision. line 13 (4) For purposes of this section, a proposed housing development line 14 project is not inconsistent with the applicable zoning standards line 15 and criteria, and shall not require a rezoning, if the housing line 16 development project is consistent with the objective general plan line 17 standards and criteria b ut the zoning for the project site is line 18 inconsistent with the general plan. If the local agency has complied line 19 with paragraph (2), the local agenc y may require the proposed line 20 housing de velopment project to comply with the objecti ve line 21 standards and criteria of the zoning which is consistent with the line 22 general plan, however, the standards and criteria shall be applied line 23 to facilitate and accommodate development at the density allowed line 24 on the site by the general plan and proposed by the proposed line 25 housing development project.
line 26 (k) (1) (A) (i) The applicant, a person who would be eligible line 27 to apply for residenc y in the housing de velopment project or line 28 emergency shelter, or a housing organization may bring an action line 29 to enforce this section. If, in an y action brought to enforce this line 30 section, a court finds that any of the following are met, the court line 31 shall issue an order pursuant to clause (ii):
line 32 (I) The local agency, in violation of subdivision (d), disapproved line 33 a housing de velopment project or conditioned its appro val in a line 34 manner rendering it infeasible for the development of an emergency line 35 shelter, or housing for v ery lo w, lo w-, or moderate-income line 36 households, including f armworker housing, without making the line 37 findings required by this section or without making findings line 38 supported by a preponderance of the evidence.
line 39 (II) The local agency, in violation of subdivision (j), disapproved line 40 a housing de velopment project complying with applicable, 97 — 34 — AB 1886
line 1 objective general plan and zoning standards and criteria, or imposed line 2 a condition that the project be developed at a lower density, without line 3 making the findings required by this section or without making line 4 findings supported by a preponderance of the evidence. line 5 (III) (ia) Subject to sub-subclause (ib), the local agenc y, in line 6 violation of subdi vision (o), required or attempted to require a line 7 housing development project to comply with an ordinance, policy, line 8 or standard not adopted and in ef fect when a preliminary line 9 application was submitted.
line 10 (ib) This subclause shall become inoperative on January 1, 2030. line 11 (ii) If the court finds that one of the conditions in clause (i) is line 12 met, the court shall issue an order or judgment compelling line 13 compliance with this section within 60 days, including, b ut not line 14 limited to, an order that the local agency take action on the housing line 15 development project or emer gency shelter. The court may issue line 16 an order or judgment directing the local agenc y to appro ve the line 17 housing development project or emer gency shelter if the court line 18 finds that the local agency acted in bad faith when it disapproved line 19 or conditionally approved the housing development or emergency line 20 shelter in violation of this section. The court shall retain jurisdiction line 21 to ensure that its order or judgment is carried out and shall award line 22 reasonable attorne y’s fees and costs of suit to the plaintif f or line 23 petitioner, pro vided, ho wever, that the court shall not a ward line 24 attorney’s fees in either of the following instances:
line 25 (I) The court finds, under e xtraordinary circumstances, that line 26 awarding fees would not further the purposes of this section. line 27 (II) (ia) In a case concerning a disapproval within the meaning line 28 of subparagraph (D) or (E) of paragraph (6) of subdivision (h), the line 29 court finds that the local agenc y acted in good f aith and had line 30 reasonable cause to disapprove the housing development project line 31 due to the e xistence of a controlling question of la w about the line 32 application of the California Environmental Quality Act (Division line 33 13 (commencing with Section 21000) of the Public Resources line 34 Code) or implementing guidelines as to which there w as a line 35 substantial ground for dif ference of opinion at the time of the line 36 disapproval.
line 37 (ib) This subclause shall become inoperative on January 1, 2031. line 38 (B) Upon a determination that the local agenc y has f ailed to line 39 comply with the order or judgment compelling compliance with line 40 this section within 60 days issued pursuant to subparagraph (A), 97 AB 1886 — 35 —
line 1 the court shall impose fines on a local agency that has violated this line 2 section and require the local agenc y to deposit an y fine le vied line 3 pursuant to this subdi vision into a local housing trust fund. The line 4 local agency may elect to instead deposit the fine into the Building line 5 Homes and Jobs Trust Fund. The fine shall be in a minimum line 6 amount of ten thousand dollars ($10,000) per housing unit in the line 7 housing de velopment project on the date the application w as line 8 deemed complete pursuant to Section 65943. In determining the line 9 amount of fine to impose, the court shall consider the local line 10 agency’s progress in attaining its target allocation of the regional line 11 housing need pursuant to Section 65584 and an y prior violations line 12 of this section. Fines shall not be paid out of funds already line 13 dedicated to affordable housing, including, but not limited to, Low line 14 and Moderate Income Housing Asset Funds, funds dedicated to line 15 housing for very low, low-, and moderate-income households, and line 16 federal HOME Investment Partnerships Program and Community line 17 Development Block Grant Program funds. The local agency shall line 18 commit and e xpend the mone y in the local housing trust fund line 19 within fiv e years for the sole purpose of financing ne wly line 20 constructed housing units affordable to extremely low, very low, line 21 or low-income households. After five years, if the funds have not line 22 been expended, the money shall revert to the state and be deposited line 23 in the Building Homes and Jobs Trust Fund for the sole purpose line 24 of financing ne wly constructed housing units af fordable to line 25 extremely low, very low, or low-income households. line 26 (C) If the court determines that its order or judgment has not line 27 been carried out within 60 days, the court may issue further orders line 28 as provided by law to ensure that the purposes and policies of this line 29 section are fulfilled, including, but not limited to, an order to vacate line 30 the decision of the local agenc y and to appro ve the housing line 31 development project, in which case the application for the housing line 32 development project, as proposed by the applicant at the time the line 33 local agency took the initial action determined to be in violation line 34 of this section, along with any standard conditions determined by line 35 the court to be generally imposed by the local agenc y on similar line 36 projects, shall be deemed to be appro ved unless the applicant line 37 consents to a different decision or action by the local agency. line 38 (2) For purposes of this subdi vision, “housing or ganization” line 39 means a trade or industry group whose local members are primarily line 40 engaged in the construction or management of housing units or a 97 — 36 — AB 1886
line 1 nonprofit or ganization whose mission includes pro viding or line 2 advocating for increased access to housing for lo w-income line 3 households and have filed written or oral comments with the local line 4 agency prior to action on the housing de velopment project. A line 5 housing or ganization may only file an action pursuant to this line 6 section to challenge the disapproval of a housing development by line 7 a local agenc y. A housing or ganization shall be entitled to line 8 reasonable attorney’s fees and costs if it is the prevailing party in line 9 an action to enforce this section.
line 10 (l) If the court finds that the local agency (1) acted in bad faith line 11 when it disappro ved or conditionally appro ved the housing line 12 development or emergency shelter in violation of this section and line 13 (2) failed to carry out the court’s order or judgment within 60 days line 14 as described in subdivision (k), the court, in addition to any other line 15 remedies pro vided by this section, shall multiply the fine line 16 determined pursuant to subparagraph (B) of paragraph (1) of line 17 subdivision (k) by a f actor of fiv e. For purposes of this section, line 18 “bad faith” includes, but is not limited to, an action that is frivolous line 19 or otherwise entirely without merit.
line 20 (m) (1) Any action brought to enforce the pro visions of this line 21 section shall be brought pursuant to Section 1094.5 of the Code line 22 of Civil Procedure, and the local agency shall prepare and certify line 23 the record of proceedings in accordance with subdi vision (c) of line 24 Section 1094.6 of the Code of Ci vil Procedure no later than 30 line 25 days after the petition is serv ed, pro vided that the cost of line 26 preparation of the record shall be borne by the local agency, unless line 27 the petitioner elects to prepare the record as provided in subdivision line 28 (n) of this section. A petition to enforce the pro visions of this line 29 section shall be filed and serv ed no later than 90 days from the line 30 later of (1) the ef fective date of a decision of the local agenc y line 31 imposing conditions on, disapproving, or any other final action on line 32 a housing de velopment project or (2) the e xpiration of the time line 33 periods specified in subparagraph (B) of paragraph (5) of line 34 subdivision (h). Upon entry of the trial court’s order, a party may, line 35 in order to obtain appellate re view of the order , file a petition line 36 within 20 days after service upon it of a written notice of the entry line 37 of the order, or within such further time not exceeding an additional line 38 20 days as the trial court may for good cause allow, or may appeal line 39 the judgment or order of the trial court under Section 904.1 of the line 40 Code of Civil Procedure. If the local agency appeals the judgment 97 AB 1886 — 37 —
line 1 of the trial court, the local agency shall post a bond, in an amount line 2 to be determined by the court, to the benefit of the plaintiff if the line 3 plaintiff is the project applicant.
line 4 (2) (A) A disapproval within the meaning of subparagraph (D) line 5 of paragraph (6) of subdi vision (h) shall be final for purposes of line 6 this subdi vision, if the local agenc y did not mak e a la wful line 7 determination within the time period set forth in subclause (V) of line 8 clause (i) of that subparagraph after the applicant’s timely written line 9 notice.
line 10 (B) This paragraph shall become inoperative on January 1, 2031. line 11 (3) (A) A disapproval within the meaning of subparagraph (E) line 12 of paragraph (6) of subdi vision (h) shall be final for purposes of line 13 this subdi vision, if the local agenc y did not mak e a la wful line 14 determination within 90 days of the applicant’ s timely written line 15 notice.
line 16 (B) This paragraph shall become inoperative on January 1, 2031. line 17 (n) In any action, the record of the proceedings before the local line 18 agency shall be filed as e xpeditiously as possible and, line 19 notwithstanding Section 1094.6 of the Code of Civil Procedure or line 20 subdivision (m) of this section, all or part of the record may be line 21 prepared (1) by the petitioner with the petition or petitioner’s points line 22 and authorities, (2) by the respondent with respondent’s points and line 23 authorities, (3) after payment of costs by the petitioner , or (4) as line 24 otherwise directed by the court. If the e xpense of preparing the line 25 record has been borne by the petitioner and the petitioner is the line 26 prevailing party, the expense shall be taxable as costs. line 27 (o) (1) (A) Subject to paragraphs (2), (6), and (7), and line 28 subdivision (d) of Section 65941.1, a housing development project line 29 shall be subject only to the ordinances, policies, and standards line 30 adopted and in effect when a preliminary application including all line 31 of the information required by subdivision (a) of Section 65941.1 line 32 was submitted.
line 33 (B) For purposes of a local agenc y’s appro val, conditional line 34 approval, or disapproval of a housing development project pursuant line 35 to subdi vision (d), a housing element or amendment shall be line 36 considered in substantial compliance with this article only if the line 37 element or amendment w as in substantial compliance, as line 38 determined by the department or a court of competent jurisdiction, line 39 when a preliminary application, including all of the information line 40 required by subdivision (a) of Section 65941.1, was submitted or, 97 — 38 — AB 1886
line 1 if a preliminary application was not submitted, when a complete line 2 application pursuant to Section 65943 w as submitted. This line 3 subparagraph does not constitute a change in, b ut is declaratory line 4 of, existing law.
line 5 (2) Paragraph (1) shall not prohibit a housing de velopment line 6 project from being subject to ordinances, policies, and standards line 7 adopted after the preliminary application was submitted pursuant line 8 to Section 65941.1 in the following circumstances:
line 9 (A) In the case of a fee, charge, or other monetary exaction, to line 10 an increase resulting from an automatic annual adjustment based line 11 on an independently published cost index that is referenced in the line 12 ordinance or resolution establishing the fee or other monetary line 13 exaction.
line 14 (B) A preponderance of the evidence in the record establishes line 15 that subjecting the housing development project to an ordinance, line 16 policy, or standard be yond those in ef fect when a preliminary line 17 application w as submitted is necessary to mitig ate or a void a line 18 specific, adverse impact upon the public health or safety, as defined line 19 in subparagraph (A) of paragraph (1) of subdivision (j), and there line 20 is no feasible alternative method to satisfactorily mitigate or avoid line 21 the adverse impact.
line 22 (C) Subjecting the housing development project to an ordinance, line 23 policy, standard, or any other measure, beyond those in effect when line 24 a preliminary application was submitted is necessary to a void or line 25 substantially lessen an impact of the project under the California line 26 Environmental Quality Act (Division 13 (commencing with Section line 27 21000) of the Public Resources Code).
line 28 (D) The housing de velopment project has not commenced line 29 construction within two and one-half years, or three and one-half line 30 years for an affordable housing project, following the date that the line 31 project received final approval. For purposes of this subparagraph:
line 32 (i) “Affordable housing project” means a housing development line 33 that satisfies both of the following requirements:
line 34 (I) Units within the de velopment are subject to a recorded line 35 affordability restriction for at least 55 years for rental housing and line 36 45 years for owner-occupied housing, or the first purchaser of each line 37 unit participates in an equity sharing agreement as described in line 38 subparagraph (C) of paragraph (2) of subdi vision (c) of Section line 39 65915.
97 AB 1886 — 39 —
line 1 (II) All of the units within the development, excluding managers’ line 2 units, are dedicated to lo wer income households, as defined by line 3 Section 50079.5 of the Health and Safety Code.
line 4 (ii) “Final approval” means that the housing development project line 5 has received all necessary appro vals to be eligible to apply for , line 6 and obtain, a building permit or permits and either of the following line 7 is met:
line 8 (I) The e xpiration of all applicable appeal periods, petition line 9 periods, reconsideration periods, or statute of limitations for line 10 challenging that final approval without an appeal, petition, request line 11 for reconsideration, or legal challenge having been filed. line 12 (II) If a challenge is filed, that challenge is fully resolv ed or line 13 settled in favor of the housing development project. line 14 (E) The housing de velopment project is re vised follo wing line 15 submittal of a preliminary application pursuant to Section 65941.1 line 16 such that the number of residential units or square footage of line 17 construction changes by 20 percent or more, e xclusive of an y line 18 increase resulting from the receipt of a density bonus, incenti ve, line 19 concession, waiver, or similar provision, including any other locally line 20 authorized program that of fers additional density or other line 21 development bonuses when af fordable housing is pro vided. For line 22 purposes of this subdi vision, “square footage of construction” line 23 means the b uilding area, as defined by the California Building line 24 Standards Code (Title 24 of the California Code of Regulations). line 25 (3) This subdi vision does not pre vent a local agenc y from line 26 subjecting the additional units or square footage of construction line 27 that result from project re visions occurring after a preliminary line 28 application is submitted pursuant to Section 65941.1 to the line 29 ordinances, policies, and standards adopted and in effect when the line 30 preliminary application was submitted.
line 31 (4) For purposes of this subdivision, “ordinances, policies, and line 32 standards” includes general plan, community plan, specific plan, line 33 zoning, design review standards and criteria, subdivision standards line 34 and criteria, and an y other rules, re gulations, requirements, and line 35 policies of a local agency, as defined in Section 66000, including line 36 those relating to development impact fees, capacity or connection line 37 fees or charges, permit or processing fees, and other exactions. line 38 (5) This subdivision shall not be construed in a manner that line 39 would lessen the restrictions imposed on a local agency, or lessen line 40 the protections afforded to a housing development project, that are 97 — 40 — AB 1886
line 1 established by an y other la w, including an y other part of this line 2 section.
line 3 (6) This subdivision shall not restrict the authority of a public line 4 agency or local agenc y to require mitig ation measures to lessen line 5 the impacts of a housing development project under the California line 6 Environmental Quality Act (Division 13 (commencing with Section line 7 21000) of the Public Resources Code).
line 8 (7) With respect to completed residential units for which the line 9 project approval process is complete and a certificate of occupancy line 10 has been issued, nothing in this subdi vision shall limit the line 11 application of later enacted ordinances, policies, and standards line 12 that regulate the use and occupancy of those residential units, such line 13 as ordinances relating to rental housing inspection, rent line 14 stabilization, restrictions on short-term renting, and b usiness line 15 licensing requirements for owners of rental housing. line 16 (8) (A) This subdivision shall apply to a housing development line 17 project that submits a preliminary application pursuant to Section line 18 65941.1 before January 1, 2030.
line 19 (B) This subdivision shall become inoperati ve on January 1, line 20 2034.
line 21 (p) (1) Upon an y motion for an a ward of attorne y’s fees line 22 pursuant to Section 1021.5 of the Code of Ci vil Procedure, in a line 23 case challenging a local agenc y’s appro val of a housing line 24 development project, a court, in weighing whether a significant line 25 benefit has been conferred on the general public or a lar ge class line 26 of persons and whether the necessity of private enforcement makes line 27 the award appropriate, shall give due weight to the degree to which line 28 the local agenc y’s appro val furthers policies of this section, line 29 including, but not limited to, subdi visions (a), (b), and (c), the line 30 suitability of the site for a housing de velopment, and the line 31 reasonableness of the decision of the local agency. It is the intent line 32 of the Legislature that attorney’s fees and costs shall rarely, if ever, line 33 be awarded if a local agenc y, acting in good f aith, approved a line 34 housing development project that satisfies conditions established line 35 in subclauses (I), (II), and (III) of clause (i) of subparagraph (D) line 36 of paragraph (6) of subdivision (h) or clauses (i), (ii), and (iii) of line 37 subparagraph (E) of paragraph (6) of subdivision (h). line 38 (2) This subdi vision shall become inoperati ve on January 1, line 39 2031.
97 AB 1886 — 41 —
line 1 (q) This section shall be kno wn, and may be cited, as the line 2 Housing Accountability Act.
line 3 (r) The provisions of this section are severable. If any provision line 4 of this section or its application is held invalid, that invalidity shall line 5 not affect other provisions or applications that can be given effect line 6 without the invalid provision or application.
line 7 SEC. 3. No reimbursement is required by this act pursuant to line 8 Section 6 of Article XIIIB of the California Constitution because line 9 a local agency or school district has the authority to le vy service line 10 charges, fees, or assessments sufficient to pay for the program or line 11 level of service mandated by this act, within the meaning of Section line 12 17556 of the Government Code.
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97 — 42 — AB 1886