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 Government Code, relating to land use.
legislative counsel’s digest
AB 1886, as introduced, 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 development within its boundaries that includes, among other things, a housing element. Existing law, commonly referred to as the Housing Element Law, 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 Law, 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 make specified findings as to why the draft element or amendment substantially complies with the Housing Element Law despite the findings of the department.
Existing law requires a planning agency to promptly submit an adopted housing element or amendment to the department and requires the 99 ATTACHMENT 4
department to review the adopted housing element or amendment and report its findings to the planning agency within 60 days.
This bill would require a planning agency that makes the above-described findings as to why a draft housing element or amendment substantially complies with the Housing Element Law despite the findings of the department to submit those findings to the department. The bill would require the department to review those finding in its review of an adopted housing element or amendment. The bill would create a rebuttable presumption of validity 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.
(2) Existing law, the Housing Accountability Act, among other things, prohibits a local agency from disapproving, or conditioning approval 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 would provide that, for purposes of disapproving or conditionally approving a housing development project for very low, low-, or moderate-income households, 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.
(3) The Housing Accountability Act also requires 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.
99 AB 1886 — 2 —
This bill would provide that a housing element or amendment must 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 would provide that this provision is declaratory of existing law.
(4) The Housing Accountability Act provides that it does not prohibit a local agency from requiring a housing development project or emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need or need for emergency shelters, except as specified.
This bill would limit the effect of these provisions to local agencies that have adopted a housing element that the department or a court of competent jurisdiction has determined is in substantial compliance with the Housing Element Law.
(5) 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 revision of its line 9 housing element pursuant to subdivision (e) of Section 65588, or line 10 at least 60 days prior to the adoption of a subsequent amendment line 11 to this element, the planning agency shall submit a draft element line 12 revision or draft amendment to the department. The local line 13 government of the planning agency shall make the first draft line 14 revision of a housing element available for public comment for at 99 — 3 — AB 1886
line 1 least 30 days and, if any comments are received, the local line 2 government shall take at least 10 business days after the 30-day line 3 public comment period to consider and incorporate public line 4 comments into the draft revision prior to submitting it to the line 5 department. For any subsequent draft revision, the local line 6 government shall post the draft revision on its internet website and line 7 shall email a link to the draft revision to all individuals and line 8 organizations that have previously requested notices relating to line 9 the local government’s housing element at least seven days before line 10 submitting the draft revision to the department. line 11 (2) The planning agency staff shall collect and compile the line 12 public comments regarding the housing element received by the line 13 city, county, or city and county and provide these comments to line 14 each member of the legislative body before it adopts the housing line 15 element.
line 16 (3) The department shall review the draft and report its written line 17 findings to the planning agency within 90 days of its receipt of the line 18 first draft submittal for each housing element revision pursuant to line 19 subdivision (e) of Section 65588 or within 60 days of its receipt line 20 of a subsequent draft amendment or an adopted revision or adopted line 21 amendment to an element. The department shall not review the line 22 first draft submitted for each housing element revision pursuant line 23 to subdivision (e) of Section 65588 until the local government has line 24 made the draft available for public comment for at least 30 days line 25 and, if comments were received, has taken at least 10 business line 26 days to consider and incorporate public comments pursuant to line 27 paragraph (1).
line 28 (c) In the preparation of its findings, the department may consult line 29 with any public agency, group, or person. The department shall line 30 receive and consider any written comments from any public line 31 agency, group, or person regarding the draft or adopted element line 32 or amendment under review.
line 33 (d) In its written findings, the department shall determine line 34 whether the draft element or draft amendment substantially line 35 complies with this article.
line 36 (e) Prior to the adoption of its draft element or draft amendment, line 37 the legislative body shall consider the findings made by the line 38 department. If the department’s findings are not available within line 39 the time limits set by this section, the legislative body may act line 40 without them.
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line 1 (f) If the department finds that the draft element or draft line 2 amendment does not substantially comply with this article, the line 3 legislative body shall take one of the following actions:
line 4 (1) Change the draft element or draft amendment to substantially line 5 comply with this article.
line 6 (2) Adopt the draft element or draft amendment without changes. line 7 The legislative body shall include in its resolution of adoption line 8 written findings that explain the reasons the legislative body line 9 believes that the draft element or draft amendment substantially line 10 complies with this article despite the findings of the department. line 11 (g) Promptly following the adoption of its element or line 12 amendment, the planning agency shall submit a copy of the adopted line 13 element or amendment and any findings made pursuant to line 14 paragraph (2) of subdivision (f) to the department. line 15 (h) (1) The department shall, within 60 days, review adopted line 16 housing elements or amendments and any findings pursuant to line 17 paragraph (2) of subdivision (f), make a finding as to whether the line 18 adopted element or amendment is in substantial compliance with line 19 this article, and report its findings to the planning agency. line 20 (2) (A) For purposes of subdivision (d) of Section 65589.5, a line 21 housing element or amendment shall be considered to be in line 22 substantial compliance with this article when both of the following line 23 conditions are satisfied:
line 24 (i) The local agency adopts the housing element or amendment line 25 in accordance with this section.
line 26 (ii) The department or a court of competent jurisdiction line 27 determines the adopted housing element or amendment to be in line 28 substantial compliance with this article.
line 29 (B) A housing element or amendment shall continue to be line 30 considered in substantial compliance with this article until either line 31 of the following occur:
line 32 (i) The department or a court of competent jurisdiction line 33 determines that the adopted housing element or amendment is no line 34 longer in substantial compliance with this article. line 35 (ii) The end of the applicable housing element cycle. line 36 (C) This paragraph does not constitute a change in, but is line 37 declaratory of, existing law.
line 38 (3) In any legal proceeding initiated to enforce the provisions line 39 of this article, the department’s findings made pursuant to this line 40 subdivision and subdivision (b) shall create a rebuttable 99 — 5 — AB 1886
line 1 presumption of validity as to whether the adopted element or line 2 amendment substantially complies with this article. line 3 (i) (1) (A) The department shall review any action or failure line 4 to act by the city, county, or city and county that it determines is line 5 inconsistent with an adopted housing element or Section 65583, line 6 including any failure to implement any program actions included line 7 in the housing element pursuant to Section 65583. The department line 8 shall issue written findings to the city, county, or city and county line 9 as to whether the action or failure to act substantially complies line 10 with this article, and provide a reasonable time no longer than 30 line 11 days for the city, county, or city and county to respond to the line 12 findings before taking any other action authorized by this section, line 13 including the action authorized by subparagraph (B). line 14 (B) If the department finds that the action or failure to act by line 15 the city, county, or city and county does not substantially comply line 16 with this article, and if it has issued findings pursuant to this section line 17 that an amendment to the housing element substantially complies line 18 with this article, the department may revoke its findings until it line 19 determines that the city, county, or city and county has come into line 20 compliance with this article.
line 21 (2) The department may consult with any local government, line 22 public agency, group, or person, and shall receive and consider line 23 any written comments from any public agency, group, or person, line 24 regarding the action or failure to act by the city, county, or city line 25 and county described in paragraph (1), in determining whether the line 26 housing element substantially complies with this article. line 27 (j) The department shall notify the city, county, or city and line 28 county and may notify the office of the Attorney General that the line 29 city, county, or city and county is in violation of state law if the line 30 department finds that the housing element or an amendment to this line 31 element, or any action or failure to act described in subdivision line 32 (i), does not substantially comply with this article or that any local line 33 government has taken an action in violation of the following:
line 34 (1) Housing Accountability Act (Section 65589.5). line 35 (2) Section 65863.
line 36 (3) Chapter 4.3 (commencing with Section 65915). line 37 (4) Section 65008.
line 38 (5) Housing Crisis Act of 2019 (Chapter 654, Statutes of 2019, line 39 Sections 65941.1, 65943, and 66300).
line 40 (6) Section 8899.50.
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line 1 (7) Section 65913.4.
line 2 (8) Article 11 (commencing with Section 65650). line 3 (9) Article 12 (commencing with Section 65660). line 4 (10) Section 65913.11.
line 5 (11) Section 65400.
line 6 (12) Section 65863.2.
line 7 (13) Chapter 4.1 (commencing with Section 65912.100). line 8 (14) Section 65905.5.
line 9 (15) Section 65852.2.
line 10 (16) Section 65852.21.
line 11 (17) Section 65852.22.
line 12 (18) Section 65852.23.
line 13 (19) Section 65852.24.
line 14 (20) Section 65852.26.
line 15 (21) Section 66411.7.
line 16 (22) Section 65913.16.
line 17 (23) Article 2 (commencing with Section 66300.5) of Chapter line 18 12.
line 19 (24) Section 65852.28.
line 20 (25) Section 65913.4.5.
line 21 (26) Section 66499.41.
line 22 (k) Commencing July 1, 2019, prior to the Attorney General line 23 bringing any suit for a violation of the provisions identified in line 24 subdivision (j) related to housing element compliance and seeking line 25 remedies available pursuant to this subdivision, the department line 26 shall offer the jurisdiction the opportunity for two meetings in line 27 person or via telephone to discuss the violation, and shall provide line 28 the jurisdiction written findings regarding the violation. This line 29 paragraph does not affect any action filed prior to the effective line 30 date of this section. The requirements set forth in this subdivision line 31 do not apply to any suits brought for a violation or violations of line 32 paragraphs (1) and (3) to (9), inclusive, of subdivision (j). line 33 (l) In any action or special proceeding brought by the Attorney line 34 General relating to housing element compliance pursuant to a line 35 notice or referral under subdivision (j), the Attorney General may line 36 request, upon a finding of the court that the housing element does line 37 not substantially comply with the requirements of this article line 38 pursuant to this section, that the court issue an order or judgment line 39 directing the jurisdiction to bring its housing element into line 40 substantial compliance with the requirements of this article. The 99 — 7 — AB 1886
line 1 court shall retain jurisdiction to ensure that its order or judgment line 2 is carried out. If a court determines that the housing element of line 3 the jurisdiction substantially complies with this article, it shall line 4 have the same force and effect, for purposes of eligibility for any line 5 financial assistance that requires a housing element in substantial line 6 compliance and for purposes of any incentives provided under line 7 Section 65589.9, as a determination by the department that the line 8 housing element substantially complies with this article. line 9 (1) If the jurisdiction has not complied with the order or line 10 judgment after 12 months, the court shall conduct a status line 11 conference. Following the status conference, upon a determination line 12 that the jurisdiction failed to comply with the order or judgment line 13 compelling substantial compliance with the requirements of this line 14 article, the court shall impose fines on the jurisdiction, which shall line 15 be deposited into the Building Homes and Jobs Trust Fund. Any line 16 fine levied pursuant to this paragraph shall be in a minimum line 17 amount of ten thousand dollars ($10,000) per month, but shall not line 18 exceed one hundred thousand dollars ($100,000) per month, except line 19 as provided in paragraphs (2) and (3). In the event that the line 20 jurisdiction fails to pay fines imposed by the court in full and on line 21 time, the court may require the Controller to intercept any available line 22 state and local funds and direct such funds to the Building Homes line 23 and Jobs Trust Fund to correct the jurisdiction’s failure to pay. line 24 The intercept of the funds by the Controller for this purpose shall line 25 not violate any provision of the California Constitution. line 26 (2) If the jurisdiction has not complied with the order or line 27 judgment after three months following the imposition of fees line 28 described in paragraph (1), the court shall conduct a status line 29 conference. Following the status conference, if the court finds that line 30 the fees imposed pursuant to paragraph (1) are insufficient to bring line 31 the jurisdiction into compliance with the order or judgment, the line 32 court may multiply the fine determined pursuant to paragraph (1) line 33 by a factor of three. In the event that the jurisdiction fails to pay line 34 fines imposed by the court in full and on time, the court may line 35 require the Controller to intercept any available state and local line 36 funds and direct such funds to the Building Homes and Jobs Trust line 37 Fund to correct the jurisdiction’s failure to pay. The intercept of line 38 the funds by the Controller for this purpose shall not violate any line 39 provision of the California Constitution.
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line 1 (3) If the jurisdiction has not complied with the order or line 2 judgment six months following the imposition of fees described line 3 in paragraph (1), the court shall conduct a status conference. Upon line 4 a determination that the jurisdiction failed to comply with the order line 5 or judgment, the court may impose the following:
line 6 (A) If the court finds that the fees imposed pursuant to line 7 paragraphs (1) and (2) are insufficient to bring the jurisdiction into line 8 compliance with the order or judgment, the court may multiply line 9 the fine determined pursuant to paragraph (1) by a factor of six. line 10 In the event that the jurisdiction fails to pay fines imposed by the line 11 court in full and on time, the court may require the Controller to line 12 intercept any available state and local funds and direct such funds line 13 to the Building Homes and Jobs Trust Fund to correct the line 14 jurisdiction’s failure to pay. The intercept of the funds by the line 15 Controller for this purpose shall not violate any provision of the line 16 California Constitution.
line 17 (B) The court may order remedies available pursuant to Section line 18 564 of the Code of Civil Procedure, under which the agent of the line 19 court may take all governmental actions necessary to bring the line 20 jurisdiction’s housing element into substantial compliance pursuant line 21 to this article in order to remedy identified deficiencies. The court line 22 shall determine whether the housing element of the jurisdiction line 23 substantially complies with this article and, once the court makes line 24 that determination, it shall have the same force and effect, for all line 25 purposes, as the department’s determination that the housing line 26 element substantially complies with this article. An agent appointed line 27 pursuant to this paragraph shall have expertise in planning in line 28 California.
line 29 (4) This subdivision does not limit a court’s discretion to apply line 30 any and all remedies in an action or special proceeding for a line 31 violation of any law identified in subdivision (j). line 32 (m) In determining the application of the remedies available line 33 under subdivision (l), the court shall consider whether there are line 34 any mitigating circumstances delaying the jurisdiction from coming line 35 into compliance with state housing law. The court may consider line 36 whether a city, county, or city and county is making a good faith line 37 effort to come into substantial compliance or is facing substantial line 38 undue hardships.
line 39 (n) Nothing in this section shall limit the authority of the office line 40 of the Attorney General to bring a suit to enforce state law in an 99 — 9 — AB 1886
line 1 independent capacity. The office of the Attorney General may seek line 2 all remedies available under law including those set forth in this line 3 section.
line 4 (o) Notwithstanding Sections 11040 and 11042, if the Attorney line 5 General declines to represent the department in any action or line 6 special proceeding brought pursuant to a notice or referral under line 7 subdivision (j), the department may appoint or contract with other line 8 counsel for purposes of representing the department in the action line 9 or special proceeding.
line 10 (p) Notwithstanding any other provision of law, the statute of line 11 limitations set forth in subdivision (a) of Section 338 of the Code line 12 of Civil Procedure shall apply to any action or special proceeding line 13 brought by the office of the Attorney General or pursuant to a line 14 notice or referral under subdivision (j), or by the department line 15 pursuant to subdivision (o).
line 16 SEC. 2. Section 65589.5 of the Government Code is amended line 17 to read:
line 18 65589.5. (a) (1) The Legislature finds and declares all of the line 19 following:
line 20 (A) The lack of housing, including emergency shelters, is a line 21 critical problem that threatens the economic, environmental, and line 22 social quality of life in California.
line 23 (B) California housing has become the most expensive in the line 24 nation. The excessive cost of the state’s housing supply is partially line 25 caused by activities and policies of many local governments that line 26 limit the approval of housing, increase the cost of land for housing, line 27 and require that high fees and exactions be paid by producers of line 28 housing.
line 29 (C) Among the consequences of those actions are discrimination line 30 against low-income and minority households, lack of housing to line 31 support employment growth, imbalance in jobs and housing, line 32 reduced mobility, urban sprawl, excessive commuting, and air line 33 quality deterioration.
line 34 (D) Many local governments do not give adequate attention to line 35 the economic, environmental, and social costs of decisions that line 36 result in disapproval of housing development projects, reduction line 37 in density of housing projects, and excessive standards for housing line 38 development projects.
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line 1 (2) In enacting the amendments made to this section by the act line 2 adding this paragraph, the Legislature further finds and declares line 3 the following:
line 4 (A) California has a housing supply and affordability crisis of line 5 historic proportions. The consequences of failing to effectively line 6 and aggressively confront this crisis are hurting millions of line 7 Californians, robbing future generations of the chance to call line 8 California home, stifling economic opportunities for workers and line 9 businesses, worsening poverty and homelessness, and undermining line 10 the state’s environmental and climate objectives. line 11 (B) While the causes of this crisis are multiple and complex, line 12 the absence of meaningful and effective policy reforms to line 13 significantly enhance the approval and supply of housing affordable line 14 to Californians of all income levels is a key factor. line 15 (C) The crisis has grown so acute in California that supply, line 16 demand, and affordability fundamentals are characterized in the line 17 negative: underserved demands, constrained supply, and protracted line 18 unaffordability.
line 19 (D) According to reports and data, California has accumulated line 20 an unmet housing backlog of nearly 2,000,000 units and must line 21 provide for at least 180,000 new units annually to keep pace with line 22 growth through 2025.
line 23 (E) California’s overall home ownership rate is at its lowest line 24 level since the 1940s. The state ranks 49th out of the 50 states in line 25 home ownership rates as well as in the supply of housing per capita. line 26 Only one-half of California’s households are able to afford the line 27 cost of housing in their local regions.
line 28 (F) Lack of supply and rising costs are compounding inequality line 29 and limiting advancement opportunities for many Californians. line 30 (G) The majority of California renters, more than 3,000,000 line 31 households, pay more than 30 percent of their income toward rent line 32 and nearly one-third, more than 1,500,000 households, pay more line 33 than 50 percent of their income toward rent.
line 34 (H) When Californians have access to safe and affordable line 35 housing, they have more money for food and health care; they are line 36 less likely to become homeless and in need of
line 37 government-subsidized services; their children do better in school; line 38 and businesses have an easier time recruiting and retaining line 39 employees.
99 — 11 — AB 1886
line 1 (I) An additional consequence of the state’s cumulative housing line 2 shortage is a significant increase in greenhouse gas emissions line 3 caused by the displacement and redirection of populations to states line 4 with greater housing opportunities, particularly working- and line 5 middle-class households. California’s cumulative housing shortfall line 6 therefore has not only national but international environmental line 7 consequences.
line 8 (J) California’s housing picture has reached a crisis of historic line 9 proportions despite the fact that, for decades, the Legislature has line 10 enacted numerous statutes intended to significantly increase the line 11 approval, development, and affordability of housing for all income line 12 levels, including this section.
line 13 (K) The Legislature’s intent in enacting this section in 1982 and line 14 in expanding its provisions since then was to significantly increase line 15 the approval and construction of new housing for all economic line 16 segments of California’s communities by meaningfully and line 17 effectively curbing the capability of local governments to deny, line 18 reduce the density for, or render infeasible housing development line 19 projects and emergency shelters. That intent has not been fulfilled. line 20 (L) It is the policy of the state that this section be interpreted line 21 and implemented in a manner to afford the fullest possible weight line 22 to the interest of, and the approval and provision of, housing. line 23 (3) It is the intent of the Legislature that the conditions that line 24 would have a specific, adverse impact upon the public health and line 25 safety, as described in paragraph (2) of subdivision (d) and line 26 paragraph (1) of subdivision (j), arise infrequently. line 27 (b) It is the policy of the state that a local government not reject line 28 or make infeasible housing development projects, including line 29 emergency shelters, that contribute to meeting the need determined line 30 pursuant to this article without a thorough analysis of the economic, line 31 social, and environmental effects of the action and without line 32 complying with subdivision (d).
line 33 (c) The Legislature also recognizes that premature and line 34 unnecessary development of agricultural lands for urban uses line 35 continues to have adverse effects on the availability of those lands line 36 for food and fiber production and on the economy of the state. line 37 Furthermore, it is the policy of the state that development should line 38 be guided away from prime agricultural lands; therefore, in line 39 implementing this section, local jurisdictions should encourage, line 40 to the maximum extent practicable, in filling existing urban areas. 99 AB 1886 — 12 —
line 1 (d) A local agency shall not disapprove a housing development line 2 project, including farmworker housing as defined in subdivision line 3 (h) of Section 50199.7 of the Health and Safety Code, for very line 4 low, low-, or moderate-income households, or an emergency line 5 shelter, or condition approval in a manner that renders the housing line 6 development project infeasible for development for the use of very line 7 low, low-, or moderate-income households, or an emergency line 8 shelter, including through the use of design review standards, line 9 unless it makes written findings, based upon a preponderance of line 10 the evidence in the record, as to one of the following:
line 11 (1) The jurisdiction has adopted a housing element pursuant to line 12 this article that has been revised in accordance with Section 65588, line 13 is in substantial compliance with this article, and the jurisdiction line 14 has met or exceeded its share of the regional housing need line 15 allocation pursuant to Section 65584 for the planning period for line 16 the income category proposed for the housing development project, line 17 provided that any disapproval or conditional approval shall not be line 18 based on any of the reasons prohibited by Section 65008. If the line 19 housing development project includes a mix of income categories, line 20 and the jurisdiction has not met or exceeded its share of the regional line 21 housing need for one or more of those categories, then this line 22 paragraph shall not be used to disapprove or conditionally approve line 23 the housing development project. The share of the regional housing line 24 need met by the jurisdiction shall be calculated consistently with line 25 the forms and definitions that may be adopted by the Department line 26 of Housing and Community Development pursuant to Section line 27 65400. In the case of an emergency shelter, the jurisdiction shall line 28 have met or exceeded the need for emergency shelter, as identified line 29 pursuant to paragraph (7) of subdivision (a) of Section 65583. Any line 30 disapproval or conditional approval pursuant to this paragraph line 31 shall be in accordance with applicable law, rule, or standards. line 32 (2) The housing development project or emergency shelter as line 33 proposed would have a specific, adverse impact upon the public line 34 health or safety, and there is no feasible method to satisfactorily line 35 mitigate or avoid the specific, adverse impact without rendering line 36 the development unaffordable to low- and moderate-income line 37 households or rendering the development of the emergency shelter line 38 financially infeasible. As used in this paragraph, a “specific, line 39 adverse impact” means a significant, quantifiable, direct, and line 40 unavoidable impact, based on objective, identified written public 99 — 13 — AB 1886
line 1 health or safety standards, policies, or conditions as they existed line 2 on the date the application was deemed complete. The following line 3 shall not constitute a specific, adverse impact upon the public line 4 health or safety:
line 5 (A) Inconsistency with the zoning ordinance or general plan line 6 land use designation.
line 7 (B) The eligibility to claim a welfare exemption under line 8 subdivision (g) of Section 214 of the Revenue and Taxation Code. line 9 (3) The denial of the housing development project or imposition line 10 of conditions is required in order to comply with specific state or line 11 federal law, and there is no feasible method to comply without line 12 rendering the development unaffordable to low- and line 13 moderate-income households or rendering the development of the line 14 emergency shelter financially infeasible.
line 15 (4) The housing development project or emergency shelter is line 16 proposed on land zoned for agriculture or resource preservation line 17 that is surrounded on at least two sides by land being used for line 18 agricultural or resource preservation purposes, or which does not line 19 have adequate water or wastewater facilities to serve the project. line 20 (5) The housing development project or emergency shelter is line 21 inconsistent with both the jurisdiction’s zoning ordinance and line 22 general plan land use designation as specified in any element of line 23 the general plan as it existed on the date the application was line 24 deemed complete, and the jurisdiction has adopted a revised line 25 housing element in accordance with Section 65588 that is in line 26 substantial compliance with this article. For purposes of this line 27 section, a change to the zoning ordinance or general plan land use line 28 designation subsequent to the date the application was deemed line 29 complete shall not constitute a valid basis to disapprove or line 30 condition approval of the housing development project or line 31 emergency shelter.
line 32 (A) This paragraph cannot be utilized to disapprove or line 33 conditionally approve a housing development project if the housing line 34 development project is proposed on a site that is identified as line 35 suitable or available for very low, low-, or moderate-income line 36 households in the jurisdiction’s housing element, and consistent line 37 with the density specified in the housing element, even though it line 38 is inconsistent with both the jurisdiction’s zoning ordinance and line 39 general plan land use designation.
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line 1 (B) If the local agency has failed to identify in the inventory of line 2 land in its housing element sites that can be developed for housing line 3 within the planning period and are sufficient to provide for the line 4 jurisdiction’s share of the regional housing need for all income line 5 levels pursuant to Section 65584, then this paragraph shall not be line 6 utilized to disapprove or conditionally approve a housing line 7 development project proposed for a site designated in any element line 8 of the general plan for residential uses or designated in any element line 9 of the general plan for commercial uses if residential uses are line 10 permitted or conditionally permitted within commercial line 11 designations. In any action in court, the burden of proof shall be line 12 on the local agency to show that its housing element does identify line 13 adequate sites with appropriate zoning and development standards line 14 and with services and facilities to accommodate the local agency’s line 15 share of the regional housing need for the very low, low-, and line 16 moderate-income categories.
line 17 (C) If the local agency has failed to identify a zone or zones line 18 where emergency shelters are allowed as a permitted use without line 19 a conditional use or other discretionary permit, has failed to line 20 demonstrate that the identified zone or zones include sufficient line 21 capacity to accommodate the need for emergency shelter identified line 22 in paragraph (7) of subdivision (a) of Section 65583, or has failed line 23 to demonstrate that the identified zone or zones can accommodate line 24 at least one emergency shelter, as required by paragraph (4) of line 25 subdivision (a) of Section 65583, then this paragraph shall not be line 26 utilized to disapprove or conditionally approve an emergency line 27 shelter proposed for a site designated in any element of the general line 28 plan for industrial, commercial, or multifamily residential uses. In line 29 any action in court, the burden of proof shall be on the local agency line 30 to show that its housing element does satisfy the requirements of line 31 paragraph (4) of subdivision (a) of Section 65583. line 32 (e) Nothing in this section shall be construed to relieve the local line 33 agency from complying with the congestion management program line 34 required by Chapter 2.6 (commencing with Section 65088) of line 35 Division 1 of Title 7 or the California Coastal Act of 1976 line 36 (Division 20 (commencing with Section 30000) of the Public line 37 Resources Code). Neither shall anything in this section be line 38 construed to relieve the local agency from making one or more of line 39 the findings required pursuant to Section 21081 of the Public line 40 Resources Code or otherwise complying with the California 99 — 15 — AB 1886
line 1 Environmental Quality Act (Division 13 (commencing with Section line 2 21000) of the Public Resources Code).
line 3 (f) (1) Except as provided in subdivision (o), nothing in this line 4 section shall be construed to prohibit a local agency that has line 5 adopted a housing element that the department or a court of line 6 competent jurisdiction has determined to be in substantial line 7 compliance with this article from requiring the housing line 8 development project to comply with objective, quantifiable, written line 9 development standards, conditions, and policies appropriate to, line 10 and consistent with, meeting the jurisdiction’s share of the regional line 11 housing need pursuant to Section 65584. However, the line 12 development standards, conditions, and policies shall be applied line 13 to facilitate and accommodate development at the density permitted line 14 on the site and proposed by the development.
line 15 (2) Except as provided in subdivision (o), nothing in this section line 16 shall be construed to prohibit a local agency that has adopted a line 17 housing element that the department or a court of competent line 18 jurisdiction has determined to be in substantial compliance with line 19 this article from requiring an emergency shelter project to comply line 20 with objective, quantifiable, written development standards, line 21 conditions, and policies that are consistent with paragraph (4) of line 22 subdivision (a) of Section 65583 and appropriate to, and consistent line 23 with, meeting the jurisdiction’s need for emergency shelter, as line 24 identified pursuant to paragraph (7) of subdivision (a) of Section line 25 65583. However, the development standards, conditions, and line 26 policies shall be applied by the local agency to facilitate and line 27 accommodate the development of the emergency shelter project. line 28 (3) Except as provided in subdivision (o), nothing in this section line 29 shall be construed to prohibit a local agency from imposing fees line 30 and other exactions otherwise authorized by law that are essential line 31 to provide necessary public services and facilities to the housing line 32 development project or emergency shelter.
line 33 (4) For purposes of this section, a housing development project line 34 or emergency shelter shall be deemed consistent, compliant, and line 35 in conformity with an applicable plan, program, policy, ordinance, line 36 standard, requirement, or other similar provision if there is line 37 substantial evidence that would allow a reasonable person to line 38 conclude that the housing development project or emergency line 39 shelter is consistent, compliant, or in conformity. 99 AB 1886 — 16 —
line 1 (g) This section shall be applicable to charter cities because the line 2 Legislature finds that the lack of housing, including emergency line 3 shelter, is a critical statewide problem.
line 4 (h) The following definitions apply for the purposes of this line 5 section:
line 6 (1) “Feasible” means capable of being accomplished in a line 7 successful manner within a reasonable period of time, taking into line 8 account economic, environmental, social, and technological factors. line 9 (2) “Housing development project” means a use consisting of line 10 any of the following:
line 11 (A) Residential units only.
line 12 (B) Mixed-use developments consisting of residential and line 13 nonresidential uses with at least two-thirds of the square footage line 14 designated for residential use.
line 15 (C) Transitional housing or supportive housing. line 16 (3) “Housing for very low, low-, or moderate-income line 17 households” means that either (A) at least 20 percent of the total line 18 units shall be sold or rented to lower income households, as defined line 19 in Section 50079.5 of the Health and Safety Code, or (B) 100 line 20 percent of the units shall be sold or rented to persons and families line 21 of moderate income as defined in Section 50093 of the Health and line 22 Safety Code, or persons and families of middle income, as defined line 23 in Section 65008 of this code. Housing units targeted for lower line 24 income households shall be made available at a monthly housing line 25 cost that does not exceed 30 percent of 60 percent of area median line 26 income with adjustments for household size made in accordance line 27 with the adjustment factors on which the lower income eligibility line 28 limits are based. Housing units targeted for persons and families line 29 of moderate income shall be made available at a monthly housing line 30 cost that does not exceed 30 percent of 100 percent of area median line 31 income with adjustments for household size made in accordance line 32 with the adjustment factors on which the moderate-income line 33 eligibility limits are based.
line 34 (4) “Area median income” means area median income as line 35 periodically established by the Department of Housing and line 36 Community Development pursuant to Section 50093 of the Health line 37 and Safety Code. The developer shall provide sufficient legal line 38 commitments to ensure continued availability of units for very low line 39 or low-income households in accordance with the provisions of line 40 this subdivision for 30 years.
99 — 17 — AB 1886
line 1 (5) Notwithstanding any other law, until January 1, 2030, line 2 “deemed complete” means that the applicant has submitted a line 3 preliminary application pursuant to Section 65941.1 or, if the line 4 applicant has not submitted a preliminary application, has line 5 submitted a complete application pursuant to Section 65943. line 6 (6) “Disapprove the housing development project” includes any line 7 instance in which a local agency does any of the following:
line 8 (A) Votes on a proposed housing development project line 9 application and the application is disapproved, including any line 10 required land use approvals or entitlements necessary for the line 11 issuance of a building permit.
line 12 (B) Fails to comply with the time periods specified in line 13 subdivision (a) of Section 65950. An extension of time pursuant line 14 to Article 5 (commencing with Section 65950) shall be deemed to line 15 be an extension of time pursuant to this paragraph. line 16 (C) Fails to meet the time limits specified in Section 65913.3. line 17 (D) (i) Fails to make a determination of whether the project is line 18 exempt from the California Environmental Quality Act (Division line 19 13 (commencing with Section 21000) of the Public Resources line 20 Code), or commits an abuse of discretion, as defined in this line 21 subparagraph, if all of the following conditions are satisfied:
line 22 (I) There is substantial evidence in the record before the local line 23 agency that the housing development project is not located in either line 24 of the following:
line 25 (ia) On a site specified in subparagraphs (A) to (C), inclusive, line 26 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 27 subdivision (a) of Section 65913.4.
line 28 (ib) Within a very high fire hazard severity zone, as determined line 29 by the Department of Forestry and Fire Protection pursuant to line 30 Section 51178, or within a high or very high fire hazard severity line 31 zone as indicated on maps adopted by the Department of Forestry line 32 and Fire Protection pursuant to Section 4202 of the Public line 33 Resources Code.
line 34 (II) The housing development project is located on a legal parcel line 35 or parcels within an urbanized area and meets one or more of the line 36 following criteria:
line 37 (ia) The housing development project is located within one-half line 38 mile walking distance to either a high-quality transit corridor or a line 39 major transit stop.
99 AB 1886 — 18 —
line 1 (ib) The housing development project is located in a very low line 2 vehicle travel area.
line 3 (ic) The housing development project is proximal to six or more line 4 amenities pursuant to subclause (IV) of clause (ii) as of the date line 5 of submission of the application for the project. line 6 (id) Parcels that are developed with urban uses adjoin at least line 7 75 percent of the perimeter of the project site or at least three sides line 8 of a foursided four-sided project site. For purposes of this clause, line 9 parcels that are only separated by a street or highway shall be line 10 considered to be adjoined.
line 11 (III) The density of the housing development project meets or line 12 exceeds 15 dwelling units per acre.
line 13 (IV) Both of the following criteria are met:
line 14 (ia) There is substantial evidence in the record before the local line 15 agency that the housing development project is eligible for an line 16 exemption sought by the applicant.
line 17 (ib) If the exemption sought by the applicant is subject to an line 18 exception under the Guidelines for Implementation of the line 19 California Environmental Quality Act (Chapter 3 (commencing line 20 with Section 15000) of Division 6 of Title 14 of the California line 21 Code of Regulations), there is substantial evidence in the record line 22 before the local agency that the application of that categorical line 23 exemption is not barred by one of the exceptions set forth in line 24 Section 15300.2 of those guidelines.
line 25 (V) (ia) The applicant has given timely written notice to the line 26 local agency of the action or inaction that the applicant believes line 27 constitutes a failure to make a determination or an abuse of line 28 discretion, as defined in this subparagraph, and the local agency line 29 did not make a lawful determination within 90 days of the line 30 applicant’s written notice. The applicant’s written notice shall line 31 contain all of the following:
line 32 (Ia) The information specified in paragraphs (1), (2), (5), and line 33 (6) of subdivision (a) of Section 15062 of Title 14 of the California line 34 Code of Regulations.
line 35 (Ib) A citation to the section of Title 14 of the California Code line 36 of Regulations or the statute under which the applicant asserts that line 37 the project is exempt.
line 38 (Ic) A brief statement of reasons supporting the assertion that line 39 the project is exempt.
99 — 19 — AB 1886
line 1 (Id) A copy of the excerpts from the record constituting line 2 substantial evidence that the criteria of subclauses (I) to (IV), line 3 inclusive, are satisfied.
line 4 (ib) Within five working days of receiving the applicant’s line 5 written notice required by sub-subclause (ia), the local agency line 6 shall file the notice with the county clerk of each county in which line 7 the project will be located. The county clerk shall post the notice line 8 and make it available for public inspection in the manner set forth line 9 in subdivision (c) of Section 21152 of the Public Resources Code. line 10 Compliance with this sub-subclause is not a condition that must line 11 be satisfied in order to find that the local agency has disapproved line 12 the housing development project under this subparagraph. line 13 (ic) The local agency may, by providing a written response to line 14 the applicant within 90 additional days of the applicant’s written line 15 notice, extend the time period to make a lawful determination by line 16 no more than 90 days if the extension is necessary to determine if line 17 there is substantial evidence in the record that the housing line 18 development project is eligible for the exemption sought by the line 19 applicant.
line 20 (id) If the local agency has given the applicant written notice line 21 of the local agency’s determination that the project is not exempt, line 22 the applicant’s notice shall be deemed timely if and only if it is line 23 delivered to the local agency within 35 days of the date that the line 24 local agency gave the applicant notice of the local agency’s line 25 determination.
line 26 (ie) If the local agency has not given the applicant the written line 27 notice described in sub-subclause (id), the applicant’s notice shall line 28 be deemed timely if given after 60 days from the date on which line 29 the project application has been received and accepted as complete line 30 by the lead agency, or 60 days from the date on which the project line 31 application has been determined or deemed to be complete within line 32 the meaning of Section 65943, whichever is earlier. line 33 (ii) For purposes of this subparagraph, the following definitions line 34 apply:
line 35 (I) “Abuse of discretion” means that the conditions set forth in line 36 subclauses (I) to (IV), inclusive, of clause (i) are satisfied, but the line 37 local agency does not determine that the project is exempt from line 38 the California Environmental Quality Act (Division 13 line 39 (commencing with Section 21000) of the Public Resources Code). 99 AB 1886 — 20 —
line 1 This subclause sets forth the exclusive definition of “abuse of line 2 discretion” for purposes of this subparagraph.
line 3 (II) “High-quality transit corridor” has the same meaning defined line 4 in subdivision (b) of Section 21155 of the Public Resources Code. line 5 (III) “Major transit stop” has the same meaning as defined in line 6 Section 21064.3 of the Public Resources Code.
line 7 (IV) “Proximal” to an amenity means either of the following:
line 8 (ia) Within one-half mile of either of the following amenities:
line 9 (Ia) A bus station.
line 10 (Ib) A ferry terminal.
line 11 (ib) Within one mile, or for a parcel in a rural area, as defined line 12 in Section 50199.21 of the Health and Safety Code, within two line 13 miles, of any of the following amenities:
line 14 (Ia) A supermarket or grocery store.
line 15 (Ib) A public park.
line 16 (Ic) A community center.
line 17 (Id) A pharmacy or drugstore.
line 18 (Ie) A medical clinic or hospital.
line 19 (If) A public library.
line 20 (Ig) A school that maintains a kindergarten or any of grades 1 line 21 to 12, inclusive.
line 22 (V) “Urbanized area” has the same meaning as defined in line 23 Section 21071 of the Public Resources Code.
line 24 (VI) (ia) “Very low vehicle travel area” means an urbanized line 25 area, as designated by the United States Census Bureau, where the line 26 existing residential development generates vehicle miles traveled line 27 per capita that is below 85 percent of either regional vehicle miles line 28 traveled per capita or city vehicle miles traveled per capita. line 29 (ib) For purposes of sub-subclause (ia), “area” may include a line 30 travel analysis zone, hexagon, or grid.
line 31 (ic) For the purposes of determining “regional vehicle miles line 32 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 33 the entirety of incorporated and unincorporated areas governed by line 34 a multicounty or single-county metropolitan planning organization, line 35 or the entirety of the incorporated and unincorporated areas of an line 36 individual county that is not part of a metropolitan planning line 37 organization.
line 38 (iii) This subparagraph shall not be construed to require a local line 39 agency to determine that a project is exempt if, on the record before line 40 the local agency, the project is not eligible for exemption. 99 — 21 — AB 1886
line 1 (iv) This subparagraph shall become inoperative on January 1, line 2 2031.
line 3 (E) Fails to adopt a negative declaration or addendum for the line 4 project, to certify an environmental impact report for the project, line 5 or to approve another comparable environmental document, such line 6 as a sustainable communities environmental assessment pursuant line 7 to Section 21155.2 of the Public Resources Code, as required line 8 pursuant to the California Environmental Quality Act (Division line 9 13 (commencing with Section 21000) of the Public Resources line 10 Code), if all of the following conditions are satisfied:
line 11 (i) There is substantial evidence in the record before the local line 12 agency that the site of the housing development project is not line 13 located on either of the following:
line 14 (I) On a site specified in subparagraphs (A) to (C), inclusive, line 15 or subparagraphs (E) to (K), inclusive, of paragraph (6) of line 16 subdivision (a) of Section 65913.4.
line 17 (II) Within a very high fire hazard severity zone, as determined line 18 by the Department of Forestry and Fire Protection pursuant to line 19 Section 51178, or within a high or very high fire hazard severity line 20 zone as indicated on maps adopted by the Department of Forestry line 21 and Fire Protection pursuant to Section 4202 of the Public line 22 Resources Code.
line 23 (ii) The housing development project is located on a legal parcel line 24 or parcels within an urbanized area and meets one or more of the line 25 following criteria:
line 26 (I) The housing development project is located within one-half line 27 mile walking distance to either a high-quality transit corridor or a line 28 major transit stop.
line 29 (II) The housing development project is located in a very low line 30 vehicle travel area.
line 31 (III) The housing development project is proximal to six or more line 32 amenities pursuant to subclause (IV) of clause (vii) as of the date line 33 of submission of the application for the project. line 34 (IV) Parcels that are developed with urban uses adjoin at least line 35 75 percent of the perimeter of the project site or at least three sides line 36 of a foursided four-sided project site. For purposes of this clause, line 37 parcels that are only separated by a street or highway shall be line 38 considered to be adjoined.
line 39 (iii) The density of the housing development project meets or line 40 exceeds 15 dwelling units per acre.
99 AB 1886 — 22 —
line 1 (iv) There has been prepared a negative declaration, addendum, line 2 environmental impact report, or comparable environmental review line 3 document that, if duly adopted, approved, or certified by the local line 4 agency, would satisfy the requirements of the California line 5 Environmental Quality Act (Division 13 (commencing with Section line 6 21000) of the Public Resources Code) with respect to the project. line 7 (v) The local agency or a body or official to which the agency line 8 has delegated authority to adopt, approve, or certify the negative line 9 declaration addendum, environmental impact report, or comparable line 10 environmental review document has held a meeting at which line 11 adoption, approval, or certification of the environmental review line 12 document was on the agenda and the environmental review line 13 document could have been adopted, approved, or certified, as line 14 applicable, but the agency did either of the following:
line 15 (I) Committed an abuse of discretion, as defined in this line 16 subparagraph.
line 17 (II) Failed to decide whether to require further study or to adopt, line 18 approve, or certify the environmental document. line 19 (vi) (I) The applicant has given timely written notice to the line 20 local agency of the action or inaction that the applicant believes line 21 constitutes a failure to decide or an abuse of discretion, and the line 22 local agency did not make a lawful determination about whether line 23 to adopt, approve, or certify the environmental review document line 24 within 90 days of the applicant’s written notice. The applicant’s line 25 written notice shall include a copy of those excerpts from the record line 26 that constitute substantial evidence that the criteria of clauses (i) line 27 to (iv), inclusive, are satisfied.
line 28 (II) If the local agency has voted to require further study, rather line 29 than adopting, approving, or certifying the negative declaration, line 30 addendum, environmental impact report, or comparable line 31 environmental review document in the form it was presented for line 32 the agency’s consideration, the applicant’s notice shall be deemed line 33 timely if and only if it is delivered to the local agency within 35 line 34 days of the date that the local agency gave written notice of its line 35 decision to the applicant.
line 36 (III) If the local agency has not voted to require further study, line 37 rather than adopting, approving, or certifying the negative line 38 declaration, addendum, environmental impact report, or comparable line 39 environmental review document in the form it was presented for line 40 the agency’s consideration, the applicant’s notice shall be deemed 99 — 23 — AB 1886
line 1 timely if given after the time period specified in Section 21151.5 line 2 of the Public Resources Code or another applicable provision of line 3 that code for completing the addendum, negative declaration, line 4 environmental impact report, or other comparable environmental line 5 review document, as applicable, has passed. If the Public Resources line 6 Code does not specifically describe the deadline to complete the line 7 applicable environmental document, a 180-day deadline is the line 8 applicable time period.
line 9 (vii) For purposes of this subparagraph, the following definitions line 10 apply:
line 11 (I) (ia) “Abuse of discretion” means either of the following:
line 12 (Ia) If the local agency fails to adopt a negative declaration, line 13 “abuse of discretion” means that the agency, in bad faith or without line 14 substantial evidence in the record to support a fair argument that line 15 further environmental study is necessary to identify or analyze line 16 potentially significant impacts on the physical environment, line 17 decided to require further environmental study rather than adopting line 18 the negative declaration.
line 19 (Ib) If the local agency fails to adopt an addendum for the line 20 project, certify an environmental impact report for the project, or line 21 approve another comparable environmental document, “abuse of line 22 discretion” means that the agency, in bad faith or without line 23 substantial evidence in the record that further environmental study line 24 is legally required to identify or analyze potentially significant line 25 impacts on the physical environment, decided to require further line 26 environmental study rather than adopting, approving, or certifying line 27 the environmental review document.
line 28 (ib) This subclause sets forth the exclusive definition of “abuse line 29 of discretion” for purposes of this subparagraph. line 30 (II) “High-quality transit corridor” has the same meaning defined line 31 in subdivision (b) of Section 21155 of the Public Resources Code. line 32 (III) “Major transit stop” has the same meaning as defined in line 33 Section 21064.3 of the Public Resources Code.
line 34 (IV) “Proximal” to an amenity means either of the following:
line 35 (ia) Within one-half mile of either of the following amenities:
line 36 (Ia) A bus station.
line 37 (Ib) A ferry terminal.
line 38 (ib) Within one mile, or for a parcel in a rural area, as defined line 39 in Section 50199.21 of the Health and Safety Code, within two line 40 miles, of any of the following amenities:
99 AB 1886 — 24 —
line 1 (Ia) A supermarket or grocery store.
line 2 (Ib) A public park.
line 3 (Ic) A community center.
line 4 (Id) A pharmacy or drugstore.
line 5 (Ie) A medical clinic or hospital.
line 6 (If) A public library.
line 7 (Ig) A school that maintains a kindergarten or any of grades 1 line 8 to 12, inclusive.
line 9 (V) “Urbanized area” has the same meaning as defined in line 10 Section 21071 of the Public Resources Code.
line 11 (VI) (ia) “Very low vehicle travel area” means an urbanized line 12 area, as designated by the United States Census Bureau, where the line 13 existing residential development generates vehicle miles traveled line 14 per capita that is below 85 percent of either regional vehicle miles line 15 traveled per capita or city vehicle miles traveled per capita. line 16 (ib) For purposes of sub-subclause (ia), “area” may include a line 17 travel analysis zone, hexagon, or grid.
line 18 (ic) For the purposes of determining “regional vehicle miles line 19 traveled per capita” pursuant to sub-subclause (ia), a “region” is line 20 the entirety of incorporated and unincorporated areas governed by line 21 a multicounty or single-county metropolitan planning organization, line 22 or the entirety of the incorporated and unincorporated areas of an line 23 individual county that is not part of a metropolitan planning line 24 organization.
line 25 (viii) This subparagraph shall become inoperative on January line 26 1, 2031.
line 27 (7) (A) For purposes of this section, “lawful determination” line 28 means any final decision about whether to approve or disapprove line 29 a statutory or categorical exemption or a negative declaration, line 30 addendum, environmental impact report, or comparable line 31 environmental review document under the California line 32 Environmental Quality Act (Division 13 (commencing with Section line 33 21000) of the Public Resources Code) that is not an abuse of line 34 discretion, as defined in clause (ii) of subparagraph (D) of line 35 paragraph (6) or clause (vii) of subparagraph (E) of paragraph (6). line 36 (B) This paragraph shall become inoperative on January 1, 2031. line 37 (8) “Lower density” includes any conditions that have the same line 38 effect or impact on the ability of the project to provide housing. line 39 (9) Until January 1, 2030, “objective” means involving no line 40 personal or subjective judgment by a public official and being 99 — 25 — AB 1886
line 1 uniformly verifiable by reference to an external and uniform line 2 benchmark or criterion available and knowable by both the line 3 development applicant or proponent and the public official. line 4 (10) Notwithstanding any other law, until January 1, 2030, line 5 “determined to be complete” means that the applicant has submitted line 6 a complete application pursuant to Section 65943. line 7 (i) If any city, county, or city and county denies approval or line 8 imposes conditions, including design changes, lower density, or line 9 a reduction of the percentage of a lot that may be occupied by a line 10 building or structure under the applicable planning and zoning in line 11 force at the time the housing development project’s application is line 12 complete, that have a substantial adverse effect on the viability or line 13 affordability of a housing development for very low, low-, or line 14 moderate-income households, and the denial of the development line 15 or the imposition of conditions on the development is the subject line 16 of a court action which challenges the denial or the imposition of line 17 conditions, then the burden of proof shall be on the local legislative line 18 body to show that its decision is consistent with the findings as line 19 described in subdivision (d), and that the findings are supported line 20 by a preponderance of the evidence in the record, and with the line 21 requirements of subdivision (o).
line 22 (j) (1) When a proposed housing development project complies line 23 with applicable, objective general plan, zoning, and subdivision line 24 standards and criteria, including design review standards, in effect line 25 at the time that the application was deemed complete, but the local line 26 agency proposes to disapprove the project or to impose a condition line 27 that the project be developed at a lower density, the local agency line 28 shall base its decision regarding the proposed housing development line 29 project upon written findings supported by a preponderance of the line 30 evidence on the record that both of the following conditions exist:
line 31 (A) The housing development project would have a specific, line 32 adverse impact upon the public health or safety unless the project line 33 is disapproved or approved upon the condition that the project be line 34 developed at a lower density. As used in this paragraph, a “specific, line 35 adverse impact” means a significant, quantifiable, direct, and line 36 unavoidable impact, based on objective, identified written public line 37 health or safety standards, policies, or conditions as they existed line 38 on the date the application was deemed complete. line 39 (B) There is no feasible method to satisfactorily mitigate or line 40 avoid the adverse impact identified pursuant to paragraph (1), other 99 AB 1886 — 26 —
line 1 than the disapproval of the housing development project or the line 2 approval of the project upon the condition that it be developed at line 3 a lower density.
line 4 (2) (A) If the local agency considers a proposed housing line 5 development project to be inconsistent, not in compliance, or not line 6 in conformity with an applicable plan, program, policy, ordinance, line 7 standard, requirement, or other similar provision as specified in line 8 this subdivision, it shall provide the applicant with written line 9 documentation identifying the provision or provisions, and an line 10 explanation of the reason or reasons it considers the housing line 11 development to be inconsistent, not in compliance, or not in line 12 conformity as follows:
line 13 (i) Within 30 days of the date that the application for the housing line 14 development project is determined to be complete, if the housing line 15 development project contains 150 or fewer housing units. line 16 (ii) Within 60 days of the date that the application for the line 17 housing development project is determined to be complete, if the line 18 housing development project contains more than 150 units. line 19 (B) If the local agency fails to provide the required line 20 documentation pursuant to subparagraph (A), the housing line 21 development project shall be deemed consistent, compliant, and line 22 in conformity with the applicable plan, program, policy, ordinance, line 23 standard, requirement, or other similar provision. line 24 (3) For purposes of this section, the receipt of a density bonus, line 25 incentive, concession, waiver, or reduction of development line 26 standards pursuant to Section 65915 shall not constitute a valid line 27 basis on which to find a proposed housing development project is line 28 inconsistent, not in compliance, or not in conformity, with an line 29 applicable plan, program, policy, ordinance, standard, requirement, line 30 or other similar provision specified in this subdivision. line 31 (4) For purposes of this section, a proposed housing development line 32 project is not inconsistent with the applicable zoning standards line 33 and criteria, and shall not require a rezoning, if the housing line 34 development project is consistent with the objective general plan line 35 standards and criteria but the zoning for the project site is line 36 inconsistent with the general plan. If the local agency has complied line 37 with paragraph (2), the local agency may require the proposed line 38 housing development project to comply with the objective line 39 standards and criteria of the zoning which is consistent with the line 40 general plan, however, the standards and criteria shall be applied 99 — 27 — AB 1886
line 1 to facilitate and accommodate development at the density allowed line 2 on the site by the general plan and proposed by the proposed line 3 housing development project.
line 4 (k) (1) (A) (i) The applicant, a person who would be eligible line 5 to apply for residency in the housing development project or line 6 emergency shelter, or a housing organization may bring an action line 7 to enforce this section. If, in any action brought to enforce this line 8 section, a court finds that any of the following are met, the court line 9 shall issue an order pursuant to clause (ii):
line 10 (I) The local agency, in violation of subdivision (d), disapproved line 11 a housing development project or conditioned its approval in a line 12 manner rendering it infeasible for the development of an emergency line 13 shelter, or housing for very low, low-, or moderate-income line 14 households, including farmworker housing, without making the line 15 findings required by this section or without making findings line 16 supported by a preponderance of the evidence.
line 17 (II) The local agency, in violation of subdivision (j), disapproved line 18 a housing development project complying with applicable, line 19 objective general plan and zoning standards and criteria, or imposed line 20 a condition that the project be developed at a lower density, without line 21 making the findings required by this section or without making line 22 findings supported by a preponderance of the evidence. line 23 (III) (ia) Subject to sub-subclause (ib), the local agency, in line 24 violation of subdivision (o), required or attempted to require a line 25 housing development project to comply with an ordinance, policy, line 26 or standard not adopted and in effect when a preliminary line 27 application was submitted.
line 28 (ib) This subclause shall become inoperative on January 1, 2030. line 29 (ii) If the court finds that one of the conditions in clause (i) is line 30 met, the court shall issue an order or judgment compelling line 31 compliance with this section within 60 days, including, but not line 32 limited to, an order that the local agency take action on the housing line 33 development project or emergency shelter. The court may issue line 34 an order or judgment directing the local agency to approve the line 35 housing development project or emergency shelter if the court line 36 finds that the local agency acted in bad faith when it disapproved line 37 or conditionally approved the housing development or emergency line 38 shelter in violation of this section. The court shall retain jurisdiction line 39 to ensure that its order or judgment is carried out and shall award line 40 reasonable attorney’s fees and costs of suit to the plaintiff or 99 AB 1886 — 28 —
line 1 petitioner, provided however, that the court shall not award line 2 attorney’s fees in either of the following instances:
line 3 (I) The court finds, under extraordinary circumstances, that line 4 awarding fees would not further the purposes of this section. line 5 (II) (ia) In a case concerning a disapproval within the meaning line 6 of subparagraph (D) or (E) of paragraph (6) of subdivision (h), the line 7 court finds that the local agency acted in good faith and had line 8 reasonable cause to disapprove the housing development project line 9 due to the existence of a controlling question of law about the line 10 application of the California Environmental Quality Act (Division line 11 13 (commencing with Section 21000) of the Public Resources line 12 Code) or implementing guidelines as to which there was a line 13 substantial ground for difference of opinion at the time of the line 14 disapproval.
line 15 (ib) This subclause shall become inoperative on January 1, 2031. line 16 (B) Upon a determination that the local agency has failed to line 17 comply with the order or judgment compelling compliance with line 18 this section within 60 days issued pursuant to subparagraph (A), line 19 the court shall impose fines on a local agency that has violated this line 20 section and require the local agency to deposit any fine levied line 21 pursuant to this subdivision into a local housing trust fund. The line 22 local agency may elect to instead deposit the fine into the Building line 23 Homes and Jobs Trust Fund. The fine shall be in a minimum line 24 amount of ten thousand dollars ($10,000) per housing unit in the line 25 housing development project on the date the application was line 26 deemed complete pursuant to Section 65943. In determining the line 27 amount of fine to impose, the court shall consider the local line 28 agency’s progress in attaining its target allocation of the regional line 29 housing need pursuant to Section 65584 and any prior violations line 30 of this section. Fines shall not be paid out of funds already line 31 dedicated to affordable housing, including, but not limited to, Low line 32 and Moderate Income Housing Asset Funds, funds dedicated to line 33 housing for very low, low-, and moderate-income households, and line 34 federal HOME Investment Partnerships Program and Community line 35 Development Block Grant Program funds. The local agency shall line 36 commit and expend the money in the local housing trust fund line 37 within five years for the sole purpose of financing newly line 38 constructed housing units affordable to extremely low, very low, line 39 or low-income households. After five years, if the funds have not line 40 been expended, the money shall revert to the state and be deposited 99 — 29 — AB 1886
line 1 in the Building Homes and Jobs Trust Fund for the sole purpose line 2 of financing newly constructed housing units affordable to line 3 extremely low, very low, or low-income households. line 4 (C) If the court determines that its order or judgment has not line 5 been carried out within 60 days, the court may issue further orders line 6 as provided by law to ensure that the purposes and policies of this line 7 section are fulfilled, including, but not limited to, an order to vacate line 8 the decision of the local agency and to approve the housing line 9 development project, in which case the application for the housing line 10 development project, as proposed by the applicant at the time the line 11 local agency took the initial action determined to be in violation line 12 of this section, along with any standard conditions determined by line 13 the court to be generally imposed by the local agency on similar line 14 projects, shall be deemed to be approved unless the applicant line 15 consents to a different decision or action by the local agency. line 16 (2) For purposes of this subdivision, “housing organization” line 17 means a trade or industry group whose local members are primarily line 18 engaged in the construction or management of housing units or a line 19 nonprofit organization whose mission includes providing or line 20 advocating for increased access to housing for low-income line 21 households and have filed written or oral comments with the local line 22 agency prior to action on the housing development project. A line 23 housing organization may only file an action pursuant to this line 24 section to challenge the disapproval of a housing development by line 25 a local agency. A housing organization shall be entitled to line 26 reasonable attorney’s fees and costs if it is the prevailing party in line 27 an action to enforce this section.
line 28 (l) If the court finds that the local agency (1) acted in bad faith line 29 when it disapproved or conditionally approved the housing line 30 development or emergency shelter in violation of this section and line 31 (2) failed to carry out the court’s order or judgment within 60 days line 32 as described in subdivision (k), the court, in addition to any other line 33 remedies provided by this section, shall multiply the fine line 34 determined pursuant to subparagraph (B) of paragraph (1) of line 35 subdivision (k) by a factor of five. For purposes of this section, line 36 “bad faith” includes, but is not limited to, an action that is frivolous line 37 or otherwise entirely without merit.
line 38 (m) (1) Any action brought to enforce the provisions of this line 39 section shall be brought pursuant to Section 1094.5 of the Code line 40 of Civil Procedure, and the local agency shall prepare and certify 99 AB 1886 — 30 —
line 1 the record of proceedings in accordance with subdivision (c) of line 2 Section 1094.6 of the Code of Civil Procedure no later than 30 line 3 days after the petition is served, provided that the cost of line 4 preparation of the record shall be borne by the local agency, unless line 5 the petitioner elects to prepare the record as provided in subdivision line 6 (n) of this section. A petition to enforce the provisions of this line 7 section shall be filed and served no later than 90 days from the line 8 later of (1) the effective date of a decision of the local agency line 9 imposing conditions on, disapproving, or any other final action on line 10 a housing development project or (2) the expiration of the time line 11 periods specified in subparagraph (B) of paragraph (5) of line 12 subdivision (h). Upon entry of the trial court’s order, a party may, line 13 in order to obtain appellate review of the order, file a petition line 14 within 20 days after service upon it of a written notice of the entry line 15 of the order, or within such further time not exceeding an additional line 16 20 days as the trial court may for good cause allow, or may appeal line 17 the judgment or order of the trial court under Section 904.1 of the line 18 Code of Civil Procedure. If the local agency appeals the judgment line 19 of the trial court, the local agency shall post a bond, in an amount line 20 to be determined by the court, to the benefit of the plaintiff if the line 21 plaintiff is the project applicant.
line 22 (2) (A) A disapproval within the meaning of subparagraph (D) line 23 of paragraph (6) of subdivision (h) shall be final for purposes of line 24 this subdivision, if the local agency did not make a lawful line 25 determination within the time period set forth in subclause (V) of line 26 clause (i) of that subparagraph after the applicant’s timely written line 27 notice.
line 28 (B) This paragraph shall become inoperative on January 1, 2031. line 29 (3) (A) A disapproval within the meaning of subparagraph (E) line 30 of paragraph (6) of subdivision (h) shall be final for purposes of line 31 this subdivision, if the local agency did not make a lawful line 32 determination within 90 days of the applicant’s timely written line 33 notice.
line 34 (B) This paragraph shall become inoperative on January 1, 2031. line 35 (n) In any action, the record of the proceedings before the local line 36 agency shall be filed as expeditiously as possible and, line 37 notwithstanding Section 1094.6 of the Code of Civil Procedure or line 38 subdivision (m) of this section, all or part of the record may be line 39 prepared (1) by the petitioner with the petition or petitioner’s points line 40 and authorities, (2) by the respondent with respondent’s points and 99 — 31 — AB 1886
line 1 authorities, (3) after payment of costs by the petitioner, or (4) as line 2 otherwise directed by the court. If the expense of preparing the line 3 record has been borne by the petitioner and the petitioner is the line 4 prevailing party, the expense shall be taxable as costs. line 5 (o) (1) (A) Subject to paragraphs (2), (6), and (7), and line 6 subdivision (d) of Section 65941.1, a housing development project line 7 shall be subject only to the ordinances, policies, and standards line 8 adopted and in effect when a preliminary application including all line 9 of the information required by subdivision (a) of Section 65941.1 line 10 was submitted.
line 11 (B) For purposes of a local agency’s approval, conditional line 12 approval, or disapproval of a housing development project line 13 pursuant to subdivision (d), a housing element or amendment shall line 14 be considered in substantial compliance with this article only if line 15 the element or amendment was in substantial compliance, as line 16 determined by the department or a court of competent jurisdiction, line 17 when a preliminary application, including all of the information line 18 required by subdivision (a) of Section 65941.1, was submitted or, line 19 if a preliminary application was not submitted, when a complete line 20 application pursuant to Section 65943 was submitted. This line 21 subparagraph does not constitute a change in, but is declaratory line 22 of, existing law.
line 23 (2) Paragraph (1) shall not prohibit a housing development line 24 project from being subject to ordinances, policies, and standards line 25 adopted after the preliminary application was submitted pursuant line 26 to Section 65941.1 in the following circumstances:
line 27 (A) In the case of a fee, charge, or other monetary exaction, to line 28 an increase resulting from an automatic annual adjustment based line 29 on an independently published cost index that is referenced in the line 30 ordinance or resolution establishing the fee or other monetary line 31 exaction.
line 32 (B) A preponderance of the evidence in the record establishes line 33 that subjecting the housing development project to an ordinance, line 34 policy, or standard beyond those in effect when a preliminary line 35 application was submitted is necessary to mitigate or avoid a line 36 specific, adverse impact upon the public health or safety, as defined line 37 in subparagraph (A) of paragraph (1) of subdivision (j), and there line 38 is no feasible alternative method to satisfactorily mitigate or avoid line 39 the adverse impact.
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line 1 (C) Subjecting the housing development project to an ordinance, line 2 policy, standard, or any other measure, beyond those in effect when line 3 a preliminary application was submitted is necessary to avoid or line 4 substantially lessen an impact of the project under the California line 5 Environmental Quality Act (Division 13 (commencing with Section line 6 21000) of the Public Resources Code).
line 7 (D) The housing development project has not commenced line 8 construction within two and one-half years, or three and one-half line 9 years for an affordable housing project, following the date that the line 10 project received final approval. For purposes of this subparagraph:
line 11 (i) “Affordable housing project” means a housing development line 12 that satisfies both of the following requirements:
line 13 (I) Units within the development are subject to a recorded line 14 affordability restriction for at least 55 years for rental housing and line 15 45 years for owner-occupied housing, or the first purchaser of each line 16 unit participates in an equity sharing agreement as described in line 17 subparagraph (C) of paragraph (2) of subdivision (c) of Section line 18 65915.
line 19 (II) All of the units within the development, excluding managers’ line 20 units, are dedicated to lower income households, as defined by line 21 Section 50079.5 of the Health and Safety Code.
line 22 (ii) “Final approval” means that the housing development project line 23 has received all necessary approvals to be eligible to apply for, line 24 and obtain, a building permit or permits and either of the following line 25 is met:
line 26 (I) The expiration of all applicable appeal periods, petition line 27 periods, reconsideration periods, or statute of limitations for line 28 challenging that final approval without an appeal, petition, request line 29 for reconsideration, or legal challenge having been filed. line 30 (II) If a challenge is filed, that challenge is fully resolved or line 31 settled in favor of the housing development project. line 32 (E) The housing development project is revised following line 33 submittal of a preliminary application pursuant to Section 65941.1 line 34 such that the number of residential units or square footage of line 35 construction changes by 20 percent or more, exclusive of any line 36 increase resulting from the receipt of a density bonus, incentive, line 37 concession, waiver, or similar provision, including any other locally line 38 authorized program that offers additional density or other line 39 development bonuses when affordable housing is provided. For line 40 purposes of this subdivision, “square footage of construction” 99 — 33 — AB 1886
line 1 means the building area, as defined by the California Building line 2 Standards Code (Title 24 of the California Code of Regulations). line 3 (3) This subdivision does not prevent a local agency from line 4 subjecting the additional units or square footage of construction line 5 that result from project revisions occurring after a preliminary line 6 application is submitted pursuant to Section 65941.1 to the line 7 ordinances, policies, and standards adopted and in effect when the line 8 preliminary application was submitted.
line 9 (4) For purposes of this subdivision, “ordinances, policies, and line 10 standards” includes general plan, community plan, specific plan, line 11 zoning, design review standards and criteria, subdivision standards line 12 and criteria, and any other rules, regulations, requirements, and line 13 policies of a local agency, as defined in Section 66000, including line 14 those relating to development impact fees, capacity or connection line 15 fees or charges, permit or processing fees, and other exactions. line 16 (5) This subdivision shall not be construed in a manner that line 17 would lessen the restrictions imposed on a local agency, or lessen line 18 the protections afforded to a housing development project, that are line 19 established by any other law, including any other part of this line 20 section.
line 21 (6) This subdivision shall not restrict the authority of a public line 22 agency or local agency to require mitigation measures to lessen line 23 the impacts of a housing development project under the California line 24 Environmental Quality Act (Division 13 (commencing with Section line 25 21000) of the Public Resources Code).
line 26 (7) With respect to completed residential units for which the line 27 project approval process is complete and a certificate of occupancy line 28 has been issued, nothing in this subdivision shall limit the line 29 application of later enacted ordinances, policies, and standards line 30 that regulate the use and occupancy of those residential units, such line 31 as ordinances relating to rental housing inspection, rent line 32 stabilization, restrictions on short-term renting, and business line 33 licensing requirements for owners of rental housing. line 34 (8) (A) This subdivision shall apply to a housing development line 35 project that submits a preliminary application pursuant to Section line 36 65941.1 before January 1, 2030.
line 37 (B) This subdivision shall become inoperative on January 1, line 38 2034.
line 39 (p) (1) Upon any motion for an award of attorney’s fees line 40 pursuant to Section 1021.5 of the Code of Civil Procedure, in a 99 AB 1886 — 34 —
line 1 case challenging a local agency’s approval of a housing line 2 development project, a court, in weighing whether a significant line 3 benefit has been conferred on the general public or a large class line 4 of persons and whether the necessity of private enforcement makes line 5 the award appropriate, shall give due weight to the degree to which line 6 the local agency’s approval furthers policies of this section, line 7 including, but not limited to, subdivisions (a), (b), and (c), the line 8 suitability of the site for a housing development, and the line 9 reasonableness of the decision of the local agency. It is the intent line 10 of the Legislature that attorney’s fees and costs shall rarely, if ever, line 11 be awarded if a local agency, acting in good faith, approved a line 12 housing development project that satisfies conditions established line 13 in subclauses (I), (II), and (III) of clause (i) of subparagraph (D) line 14 of paragraph (6) of subdivision (h) or clauses (i), (ii), and (iii) of line 15 subparagraph (E) of paragraph (6) of subdivision (h). line 16 (2) This subdivision shall become inoperative on January 1, line 17 2031.
line 18 (q) This section shall be known, and may be cited, as the line 19 Housing Accountability Act.
line 20 (r) The provisions of this section are severable. If any provision line 21 of this section or its application is held invalid, that invalidity shall line 22 not affect other provisions or applications that can be given effect line 23 without the invalid provision or application.
line 24 SEC. 3. No reimbursement is required by this act pursuant to line 25 Section 6 of Article XIIIB of the California Constitution because line 26 a local agency or school district has the authority to levy service line 27 charges, fees, or assessments sufficient to pay for the program or line 28 level of service mandated by this act, within the meaning of Section line 29 17556 of the Government Code.
O
99 — 35 — AB 1886