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 Scott Wiener
California State Senate
1020 O Street
Sacramento, CA 95829
Re: SB 1037 (Wiener)—Oppose
Dear Senator Wiener:
On behalf of the City of Huntington Beach, I write in opposition to SB 1037, which authorizes the State Attorney General to enforce the adoption of a housing element or enforce any other state law governing a land use decision or housing permit, on behalf of the Department of Housing and Community Development (HCD).
SB 1037 and its provisions represent a significant overreach by the State Attorney General to exert financial and political pressure on local governments. HCD is already well suited to enforce state law. Moreover, current law authorizes HCD to request the Attorney General to act on the Department’s behalf. Therefore, we identify this new authority for the Attorney General to unilaterally intervene as wholly unnecessary.
Moreover, the fine levels proposed in SB 1037 are unparalleled and ripe for misuse by the Attorney General for alternative intents. California has imposed a litany of overcomplex provisions related to housing, be it single- use, multifamily dwellings, setbacks, parking requirements, accessory dwelling units, etc., while providing limited to no consistent baseline resources for local governments to comply. The bill would specify that in the instance of proposed violations, the penalties imposed by the Attorney General would range from $10,000 to $50,000 per month per violation. And, if a local government does not or cannot afford to pay such penalties, SB 1037 allows the State Controller to intercept “any available state and local funds” to direct them to the Housing Trust Fund. This is ripe for abuse and could severely limit local government’s ability to provide essential public services.
The City works in earnest to provide all housing, affordable and market rate, that correspond to the capacity and interests of our residents. SB 1037 extends the state’s response to undermine and penalize local control.
For these reasons we oppose SB 1037.
Sincerely,
Gracey Van Der Mark
Mayor
Cc: Huntington Beach City Council
AMENDED IN SENATE MARCH 19, 2024
SENATE BILL No. 1037
Introduced by Senator Wiener
February 6, 2024
An act to amend add Section 65400 of 65009.1 to the Government Code, relating to housing.
legislative counsel’s digest
SB 1037, as amended, Wiener. Planning and zoning: general plan. housing element: enforcement.
Existing law, the Planning and Zoning Law, requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. The Planning and Zoning Law requires the Department of Housing and Community Development (HCD) to determine whether the housing element is in substantial compliance with specified pr ovisions of that law . The Planning and Zoning Law requires HCD to notify a city, county, or city and county, and authorizes HCD to notify the office of the Attorney General, that the city, county, or city and county is in violation of state law if the local go vernment has taken action in violation of specified provisions of law. The Planning and Zoning Law also requires, among other things, that an application for a housing development be subject to a specified str eamlined, ministerial appr oval pr ocess if the development satisfies certain objective planning standards.
This bill, in any action br ought by the Attorney General, on behalf of HCD or in an independent capacity , to enfor ce the adoption of housing element revisions, as specified, or to enforce any state law that requires a city , county, or local a gency to ministerially appr ove any land use decision or permitting application for a housing development
98 project, as specified, would subject the city, county, or local agency to specified remedies, including a civil penalty of , at minimum, $10,000 per month, and not e xceeding $50,000 per month, for eac h violation, as specified. The bill would require these civil penalties, as specified, to be deposited into the Building Homes and J obs Trust Fund for the sole purpose of supporting the de velopment of af fordable housing located in the af fected jurisdiction, e xcept as pr ovided, and would require that expenditure of any penalty moneys deposited into the fund under these provisions be subject to appropriation by the Legislature.
In the event a city, county, or local a gency fails to pay civil penalties imposed by the court, the bill would authorize the court to require the Controller to intercept any available state and local funds and dir ect those funds to the Building Homes and Jobs Trust Fund to correct the jurisdiction’s failure to pay, as specified.
The bill would mak e a related statement of le gislative findings and declarations.
The bill would include findings that c hanges proposed by this bill address a matter of state wide concern rather than a municipal af fair and, therefore, apply to all cities, including charter cities.
Existing law, the Planning and Zoning Law, requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element.
Existing la w requires the planning agenc y of a city or county to provide an annual report to certain specified entities by April 1 of each year that includes specified information.
This bill would make nonsubstantive changes to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no yes. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Le gislature finds and declar es all of the line 2 following:
line 3 (a) California has a statewide housing shortage crisis. line 4 (b) California’s housing crisis stifles economic gr owth, line 5 contributes to the homelessness epidemic, consumes an line 6 ever-growing shar e of the payc hecks of working families, and line 7 holds millions of households bac k from realizing the California line 8 dream of ac hieving housing security or home owner ship. line 9 Conversely, ne w construction of r esidences, particularly 98 — 2 — SB 1037
line 1 multifamily homes, induces a c hain of mo ves, ultimately adding line 2 more housing units af fordable to middle- and low-income line 3 households.
line 4 (c) Restrictive zoning , land use planning , and b urdensome line 5 residential permitting practices and policies, at the local level in line 6 particular, are a major cause of the shortfall between California’s line 7 housing needs and the available supply of housing. For example, line 8 despite the obligations of local go vernments under the Housing line 9 Element Law to update their g eneral plans, including r equired line 10 rezoning for additional sites to address projected housing needs, line 11 numerous cities and counties continue to delay and, at times even line 12 refuse, to undertake required actions to encourage, promote, and line 13 facilitate the de velopment of housing to accommodate the line 14 established regional housing need. The absence of updated housing line 15 elements that ar e substantially compliant with state law causes line 16 unnecessary uncertainty and delay in appr oving housing line 17 development applications. This cumulative delay causes many line 18 local governments to continue to fall behind in meeting their share line 19 of regional housing need.
line 20 (d) These restrictive practices and policies continue to per sist line 21 despite other state wide r eforms to e xpedite, str eamline, and line 22 ministerially approve the planning and construction of housing of line 23 all types, including housing affordable to persons and families of line 24 lower income. While not exhaustive, these reforms can be found line 25 in the following provisions:
line 26 (1) Accessory dwelling units, as described in Sections 65852.150 line 27 and 65852.2 of the Government Code.
line 28 (2) By-right housing, in whic h certain multifamily housing is line 29 designated a permitted use, as described in Section 65589.4 of the line 30 Government Code.
line 31 (3) Reduced time for action on affordable housing applications line 32 under the appr oval of the de velopment permits pr ocess, as line 33 described in Article 5 (commencing with Section 65950) of Chapter line 34 4.5 of Division 1 of Title 7 of the Government Code. line 35 (4) Streamlining housing approvals during a housing shortage, line 36 as described in Section 65913.4 of the Government Code. line 37 (5) Streamlining a gricultural employee housing de velopment line 38 approvals, as described in Section 17021.8 of the Health and Safety line 39 Code.
98 SB 1037 — 3 —
line 1 (6) The Housing Crisis Act of 2019, as described in Chapter line 2 654 of the Statutes of 2019 (Senate Bill 330).
line 3 (7) Allowing four units to be b uilt on single-family par cels line 4 statewide, as described in Chapter 162 of the Statutes of 2021 line 5 (Senate Bill 9).
line 6 (8) The Middle Class Housing Act of 2022, as described in line 7 Section 65852.24 of the Government Code.
line 8 (9) The Affordable Housing and High Road J obs Act of 2022, line 9 as described in Chapter 4.1 (commencing with Section 65912.100) line 10 of Division 1 of Title 7 of the Government Code. line 11 (10) Housing element law requirements and required rezoning line 12 to address unmet housing needs, as described in Chapter 974 of line 13 the Statutes of 2018 (Senate Bill 828) and Chapter 358 of the line 14 Statutes of 2021 (Assembly Bill 1398).
line 15 SEC. 2. Section 65009.1 is added to the Government Code, to line 16 read:
line 17 65009.1. (a) In any action brought by the Attorney General, line 18 on behalf of the Department of Housing and Community line 19 Development or in an independent capacity, to enforce the adoption line 20 of housing element revisions pursuant to the schedule set forth in line 21 subdivision (e) of Section 65588, or to enforce any state law that line 22 requires a city, county, or local a gency to ministerially approve, line 23 without discretionary review, any land use decision or permitting line 24 application for a housing de velopment project, the city , county, line 25 or local agency shall be subject to the following remedies:
line 26 (1) A civil penalty of , at minimum, ten thousand dollar s line 27 ($10,000) per month, and not e xceeding fifty thousand dollar s line 28 ($50,000) per month, for each violation, accrued from the date of line 29 the violation until the date the violation is cured. line 30 (2) (A) All costs of in vestigating and prosecuting this action, line 31 including e xpert fees, r easonable attorne y’s fees, and costs, line 32 whenever the Attorney General prevails in a civil action to enforce line 33 any state laws under this section.
line 34 (B) Awards imposed pursuant to this par agraph shall be paid line 35 to the Public Rights Law Enfor cement Special Fund established line 36 by Section 12530.
line 37 (3) (A) Other relief as the court deems appropriate, including line 38 equitable and injunctive relief, provisional or otherwise. 98 — 4 — SB 1037
line 1 (B) Any injunction, pr ovisional or otherwise , ordered by the line 2 court pursuant to this paragraph shall be deemed to be prohibitory, line 3 and not affirmative.
line 4 (b) The purpose of this section is to ensur e that, wher e local line 5 land use decisions or actions ar e arbitrary, capricious, entir ely line 6 lacking in e videntiary support, contr ary to established public line 7 policy, unlawful, or pr ocedurally unfair, adequate r emedies are line 8 available to ensur e that state laws mandating str eamlined, line 9 ministerial approvals r elated to housing de velopment projects, line 10 and the timely adoption of housing element revisions, are promptly line 11 and faithfully followed.
line 12 (c) (1) Any civil penalty levied pursuant to this section shall be line 13 deposited into the Building Homes and J obs Trust Fund for the line 14 sole purpose of supporting the development of affordable housing line 15 located in the af fected jurisdiction. Expenditur e of any penalty line 16 moneys deposited into the Building Homes and J obs Trust Fund line 17 pursuant to this subdivision shall be subject to appr opriation by line 18 the Legislature.
line 19 (2) Any penalty imposed pur suant to this section shall not be line 20 paid out of funds alr eady dedicated to af fordable housing , line 21 including, but not limited to, very low, low-, and moderate-income line 22 households.
line 23 (3) To the extent permitted under the California Constitution, line 24 in the e vent a city , county , or local a gency fails to pay civil line 25 penalties imposed by the court, the court may r equire the line 26 Controller to inter cept any available state and local funds and line 27 direct those funds to the Building Homes and J obs Trust Fund to line 28 correct the jurisdiction’s failure to pay.
line 29 (4) Notwithstanding paragraph (1), if the penalty moneys have line 30 not been e xpended five year s after deposit, the penalty mone ys line 31 may be used, upon appr opriation, to finance ne wly constructed line 32 affordable housing units in the state without any g eographic line 33 restrictions.
line 34 (d) The liability, penalties, and remedies imposed by this section line 35 are in addition to any other liability , penalties, and r emedies line 36 imposed by any other law.
line 37 SEC. 3. The Legislature finds and declar es that the lac k of line 38 housing is a matter of state wide concern and is not a municipal line 39 affair as that term is used in Section 5 of Article XI of the line 40 California Constitution. Therefore, the Le gislature clarifies that 98 SB 1037 — 5 —
line 1 Section 2 of this act adding Section 65009.1 to the Go vernment line 2 Code applies to all cities, including charter cities. line 3 SECTION 1. Section 65400 of the Government Code is line 4 amended to read:
line 5 65400. (a) After the le gislative body has adopted all or part line 6 of a general plan, the planning agenc y shall do both of the line 7 following:
line 8 (1) Investigate and mak e recommendations to the le gislative line 9 body regarding reasonable and practical means for implementing line 10 the general plan or element of the general plan so that it will serve line 11 as an ef fective guide for orderly gro wth and de velopment, line 12 preservation and conserv ation of open-space land and natural line 13 resources, and the efficient expenditure of public funds relating to line 14 the subjects addressed in the general plan.
line 15 (2) Provide, by April 1 of each year , an annual report to the line 16 legislative body, the Office of Planning and Research, and the line 17 Department of Housing and Community Development that includes line 18 all of the following:
line 19 (A) The status of the plan and progress in its implementation. line 20 (B) (i) The progress in meeting its share of re gional housing line 21 needs determined pursuant to Section 65584, including the need line 22 for extremely low income households, as determined pursuant to line 23 paragraph (1) of subdivision (a) of Section 65583, and local efforts line 24 to remo ve go vernmental constraints to the maintenance, line 25 improvement, and development of housing pursuant to paragraph line 26 (3) of subdivision (c) of Section 65583.
line 27 (ii) The housing element portion of the annual report, as required line 28 by this paragraph, shall be prepared through the use of standards, line 29 forms, and definitions adopted by the Department of Housing and line 30 Community De velopment. The department may re view, adopt, line 31 amend, and repeal the standards, forms, or definitions to implement line 32 this article. Any standards, forms, or definitions adopted to line 33 implement this article shall not be subject to Chapter 3.5 line 34 (commencing with Section 11340) of Part 1 of Division 3 of Title line 35 2. Before and after adoption of the forms, the housing element line 36 portion of the annual report shall include a section that describes line 37 the actions taken by the local government towards completion of line 38 the programs and status of the local government’s compliance with line 39 the deadlines in its housing element. The report shall be considered line 40 at an annual public meeting before the le gislative body where 98 — 6 — SB 1037
line 1 members of the public shall be allowed to provide oral testimony line 2 and written comments.
line 3 (iii) The report may include the number of units that have been line 4 completed pursuant to subdi vision (c) of Section 65583.1. F or line 5 purposes of this paragraph, committed assistance may be executed line 6 throughout the planning period, and the program under paragraph line 7 (1) of subdi vision (c) of Section 65583.1 shall not be required. line 8 The report shall document ho w the units meet the standards set line 9 forth in that subdivision.
line 10 (iv) The planning agency shall include the number of units in line 11 a student housing development for lower income students for which line 12 the developer of the student housing de velopment was granted a line 13 density bonus pursuant to subparagraph (F) of paragraph (1) of line 14 subdivision (b) of Section 65915.
line 15 (C) The number of housing development applications received line 16 in the prior year , including whether each housing de velopment line 17 application is subject to a ministerial or discretionary appro val line 18 process.
line 19 (D) The number of units included in all de velopment line 20 applications in the prior year.
line 21 (E) The number of units approved and disapproved in the prior line 22 year.
line 23 (F) The degree to which its appro ved general plan complies line 24 with the guidelines de veloped and adopted pursuant to Section line 25 65040.2 and the date of the last revision to the general plan. line 26 (G) A listing of sites rezoned to accommodate that portion of line 27 the city’s or county’s share of the regional housing need for each line 28 income level that could not be accommodated on sites identified line 29 in the in ventory required by paragraph (1) of subdi vision (c) of line 30 Section 65583 and Section 65584.09. The listing of sites shall also line 31 include any additional sites that may ha ve been required to be line 32 identified by Section 65863.
line 33 (H) (i) The number of units of housing demolished and ne w line 34 units of housing, including both rental housing and for-sale housing line 35 and any units that the County of Napa or the City of Napa may line 36 report pursuant to an agreement entered into pursuant to Section line 37 65584.08, that have been issued a completed entitlement, a building line 38 permit, or a certificate of occupanc y, thus f ar in the housing line 39 element cycle, and the income cate gory, by area median income 98 SB 1037 — 7 —
line 1 category, that each unit of housing satisfies. That production report line 2 shall do the following:
line 3 (I) For each income cate gory described in this subparagraph, line 4 distinguish between the number of rental housing units and the line 5 number of for-sale units that satisfy each income category. line 6 (II) For each entitlement, b uilding permit, or certificate of line 7 occupancy, include a unique site identifier that must include the line 8 assessor’s parcel number, but may also include street address, or line 9 other identifiers.
line 10 (ii) For the County of Napa and the City of Napa, the production line 11 report may report units identified in the agreement entered into line 12 pursuant to Section 65584.08.
line 13 (I) The number of applications submitted pursuant to subdivision line 14 (a) of Section 65913.4, the location and the total number of line 15 developments appro ved pursuant to subdi vision (c) of Section line 16 65913.4, the total number of b uilding permits issued pursuant to line 17 subdivision (c) of Section 65913.4, the total number of units line 18 including both rental housing and for-sale housing by area median line 19 income cate gory constructed using the process pro vided for in line 20 subdivision (c) of Section 65913.4.
line 21 (J) If the city or county has recei ved funding pursuant to the line 22 Local Government Planning Support Grants Program (Chapter 3.1 line 23 (commencing with Section 50515) of Part 2 of Division 31 of the line 24 Health and Safety Code), the information required pursuant to line 25 subdivision (a) of Section 50515.04 of the Health and Safety Code. line 26 (K) The progress of the city or county in adopting or amending line 27 its general plan or local open-space element in compliance with line 28 its obligations to consult with California Native American tribes, line 29 and to identify and protect, preserv e, and mitig ate impacts to line 30 places, features, and objects described in Sections 5097.9 and line 31 5097.993 of the Public Resources Code, pursuant to Chapter 905 line 32 of the Statutes of 2004.
line 33 (L) The following information with respect to density bonuses line 34 granted in accordance with Section 65915:
line 35 (i) The number of density bonus applications recei ved by the line 36 city or county.
line 37 (ii) The number of density bonus applications approved by the line 38 city or county.
line 39 (iii) Data from all projects approved to receive a density bonus line 40 from the city or county, including, but not limited to, the percentage 98 — 8 — SB 1037
line 1 of density bonus recei ved, the percentage of af fordable units in line 2 the project, the number of other incentives or concessions granted line 3 to the project, and an y waiver or reduction of parking standards line 4 for the project.
line 5 (M) The following information with respect to each application line 6 submitted pursuant to Chapter 4.1 (commencing with Section line 7 65912.100):
line 8 (i) The location of the project.
line 9 (ii) The status of the project, including whether it has been line 10 entitled, whether a building permit has been issued, and whether line 11 or not it has been completed.
line 12 (iii) The number of units in the project.
line 13 (iv) The number of units in the project that are rental housing. line 14 (v) The number of units in the project that are for-sale housing. line 15 (vi) The household income category of the units, as determined line 16 pursuant to subdivision (f) of Section 65584.
line 17 (b) (1) (A) The department may request corrections to the line 18 housing element portion of an annual report submitted pursuant line 19 to paragraph (2) of subdi vision (a) within 90 days of receipt. A line 20 planning agency shall mak e the requested corrections within 30 line 21 days after which the department may reject the report if the report line 22 is not in substantial compliance with the requirements of that line 23 paragraph.
line 24 (B) If the department rejects the housing element portion of an line 25 annual report as authorized by subparagraph (A), the department line 26 shall provide the reasons the report is inconsistent with paragraph line 27 (2) of subdivision (a) to the planning agency in writing. line 28 (2) If a court finds, upon a motion to that ef fect, that a city , line 29 county, or city and county failed to submit, within 60 days of the line 30 deadline established in this section, the housing element portion line 31 of the report required pursuant to subparagraph (B) of paragraph line 32 (2) of subdi vision (a) that substantially complies with the line 33 requirements of this section, the court shall issue an order or line 34 judgment compelling compliance with this section within 60 days. line 35 If the city , county, or city and county f ails to comply with the line 36 court’s order within 60 days, the plaintiff or petitioner may move line 37 for sanctions, and the court may , upon that motion, grant line 38 appropriate sanctions. The court shall retain jurisdiction to ensure line 39 that its order or judgment is carried out. If the court determines line 40 that its order or judgment is not carried out within 60 days, the 98 SB 1037 — 9 —
line 1 court may issue further orders as pro vided by law to ensure that line 2 the purposes and policies of this section are fulfilled. This line 3 subdivision applies to proceedings initiated on or after the first line 4 day of October following the adoption of forms and definitions by line 5 the Department of Housing and Community Development pursuant line 6 to paragraph (2) of subdivision (a), but no sooner than six months line 7 following that adoption.
line 8 (c) The Department of Housing and Community Development line 9 shall post a report submitted pursuant to this section on its internet line 10 website within a reasonable time of receiving the report.
O
98 — 10 — SB 1037