AMENDED IN SENATE APRIL 25, 2024
AMENDED IN SENATE MARCH 19, 2024
SENATE BILL No. 1037
Introduced by Senator Wiener
February 6, 2024
An act to add Section 65009.1 to the Go vernment Code, relating to housing.
legislative counsel’s digest
SB 1037, as amended, Wiener. Planning and zoning: 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 La w requires the Department of Housing and Community Development (HCD) to determine whether the housing element is in substantial compliance with specified pro visions of that la w. 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 streamlined, ministerial appro val process if the development satisfies certain objective planning standards.
This bill, in an y action brought by the Attorney General, on behalf of HCD or in an independent capacity , to enforce the adoption of housing element revisions, as specified, or to enforce any state law that requires a city , county, or local agenc y to ministerially appro ve any
97 land use decision or permitting application for a housing development 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 each violation, as specified. The bill would r equire that the penalties set forth in its provisions only apply when local land use decisions or actions ar e arbitrary, capricious, entirely lacking in evidentiary support, contrary to established public policy, unlawful, or procedurally unfair. The bill would require these ci vil penalties, as specified, to be deposited into the Building Homes and Jobs Trust Fund for the sole purpose of supporting the development of affordable housing located in the affected jurisdiction, except as provided, 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 agency fails to pay civil penalties imposed by the court, the bill would authorize the court to require the Controller to intercept an y available state and local funds and direct those funds to the Building Homes and Jobs Trust Fund to correct the jurisdiction’s failure to pay, as specified.
The bill would make a related statement of le gislative findings and declarations.
The bill w ould include findings that changes 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.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Le gislature finds and declares 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 gro wth, line 5 contributes to the homelessness epidemic, consumes an line 6 ever-growing share of the paychecks of w orking f amilies, and line 7 holds millions of households back from realizing the California line 8 dream of achie ving housing security or home o wnership. line 9 Conversely, ne w construction of residences, particularly line 10 multifamily homes, induces a chain of mo ves, ultimately adding 97 — 2 — SB 1037
line 1 more housing units af fordable to middle- and lo w-income line 2 households.
line 3 (c) Restrictive zoning, land use planning, and b urdensome line 4 residential permitting practices and policies, at the local le vel in line 5 particular, are a major cause of the shortfall between California’s line 6 housing needs and the available supply of housing. For example, line 7 despite the oblig ations of local go vernments under the Housing line 8 Element La w to update their general plans, including required line 9 rezoning for additional sites to address projected housing needs, line 10 numerous cities and counties continue to delay and, at times even line 11 refuse, to undertake required actions to encourage, promote, and line 12 facilitate the de velopment of housing to accommodate the line 13 established regional housing need. The absence of updated housing line 14 elements that are substantially compliant with state la w causes line 15 unnecessary uncertainty and delay in appro ving housing line 16 development applications. This cumulati ve delay causes man y line 17 local governments to continue to fall behind in meeting their share line 18 of regional housing need.
line 19 (d) These restrictive practices and policies continue to persist line 20 despite other state wide reforms to e xpedite, streamline, and line 21 ministerially approve the planning and construction of housing of line 22 all types, including housing affordable to persons and families of line 23 lower income. While not exhaustive, these reforms can be found line 24 in the following provisions:
line 25 (1) Accessory dwelling units, as described in Sections 65852.150 line 26 and 65852.2 of the Government Code.
line 27 (2) By-right housing, in which certain multif amily housing is line 28 designated a permitted use, as described in Section 65589.4 of the line 29 Government Code.
line 30 (3) Reduced time for action on affordable housing applications line 31 under the appro val of the de velopment permits process, as line 32 described in Article 5 (commencing with Section 65950) of Chapter line 33 4.5 of Division 1 of Title 7 of the Government Code. line 34 (4) Streamlining housing approvals during a housing shortage, line 35 as described in Section 65913.4 of the Government Code. line 36 (5) Streamlining agricultural emplo yee housing de velopment line 37 approvals, as described in Section 17021.8 of the Health and Safety line 38 Code.
line 39 (6) The Housing Crisis Act of 2019, as described in Chapter line 40 654 of the Statutes of 2019 (Senate Bill 330).
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line 1 (7) Allowing four units to be b uilt on single-f amily parcels line 2 statewide, as described in Chapter 162 of the Statutes of 2021 line 3 (Senate Bill 9).
line 4 (8) The Middle Class Housing Act of 2022, as described in line 5 Section 65852.24 of the Government Code.
line 6 (9) The Affordable Housing and High Road Jobs Act of 2022, line 7 as described in Chapter 4.1 (commencing with Section 65912.100) line 8 of Division 1 of Title 7 of the Government Code. line 9 (10) Housing element law requirements and required rezoning line 10 to address unmet housing needs, as described in Chapter 974 of line 11 the Statutes of 2018 (Senate Bill 828) and Chapter 358 of the line 12 Statutes of 2021 (Assembly Bill 1398).
line 13 SEC. 2. Section 65009.1 is added to the Government Code, to line 14 read:
line 15 65009.1. (a) In any action brought by the Attorney General, line 16 on behalf of the Department of Housing and Community line 17 Development or in an independent capacity, to enforce the adoption line 18 of housing element revisions pursuant to the schedule set forth in line 19 subdivision (e) of Section 65588, or to enforce any state law that line 20 requires a city, county, or local agenc y to ministerially appro ve, line 21 without discretionary review, any land use decision or permitting line 22 application for a housing de velopment project, the city , county, line 23 or local agency shall be subject to the following remedies:
line 24 (1) A ci vil penalty of, at minimum, ten thousand dollars line 25 ($10,000) per month, and not e xceeding fifty thousand dollars line 26 ($50,000) per month, for each violation, accrued from the date of line 27 the violation until the date the violation is cured. line 28 (2) (A) All costs of in vestigating and prosecuting this action, line 29 including e xpert fees, reasonable attorne y’s fees, and costs, line 30 whenever the Attorney General prevails in a civil action to enforce line 31 any state laws under this section.
line 32 (B) Awards imposed pursuant to this paragraph shall be paid line 33 to the Public Rights La w Enforcement Special Fund established line 34 by Section 12530.
line 35 (3) (A) Other relief as the court deems appropriate, including line 36 equitable and injunctive relief, provisional or otherwise. line 37 (B) Any injunction, pro visional or otherwise, ordered by the line 38 court pursuant to this paragraph shall be deemed to be prohibitory, line 39 and not affirmative.
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line 1 (b) The purpose of this section is to ensure that, where penalties line 2 set forth in this section shall only apply when local land use line 3 decisions or actions are arbitrary , capricious, entirely lacking in line 4 evidentiary support, contrary to established public policy, unlawful, line 5 or procedurally unfair, unfair. The purpose of this section is to line 6 ensure adequate remedies are a vailable to ensure that state la ws line 7 mandating streamlined, ministerial appro vals related to housing line 8 development projects, and the timely adoption of housing element line 9 revisions, are promptly and faithfully followed. line 10 (c) (1) Any civil penalty le vied pursuant to this section shall line 11 be deposited into the Building Homes and Jobs Trust Fund for the line 12 sole purpose of supporting the development of affordable housing line 13 located in the af fected jurisdiction. Expenditure of an y penalty line 14 moneys deposited into the Building Homes and Jobs Trust Fund line 15 pursuant to this subdi vision shall be subject to appropriation by line 16 the Legislature.
line 17 (2) Any penalty imposed pursuant to this section shall not be line 18 paid out of funds already dedicated to af fordable housing, line 19 including, but not limited to, very low, low-, and moderate-income line 20 households.
line 21 (3) To the extent permitted under the California Constitution, line 22 in the e vent a city , county , or local agenc y f ails to pay ci vil line 23 penalties imposed by the court, the court may require the Controller line 24 to intercept an y available state and local funds and direct those line 25 funds to the Building Homes and Jobs Trust Fund to correct the line 26 jurisdiction’s failure to pay.
line 27 (4) Notwithstanding paragraph (1), if the penalty moneys have line 28 not been e xpended five years after deposit, the penalty mone ys line 29 may be used, upon appropriation, to finance ne wly constructed line 30 affordable housing units in the state without an y geographic line 31 restrictions.
line 32 (d) The liability, penalties, and remedies imposed by this section line 33 are in addition to an y other liability , penalties, and remedies line 34 imposed by any other law.
line 35 SEC. 3. The Legislature finds and declares that the lack of line 36 housing is a matter of state wide concern and is not a municipal line 37 affair as that term is used in Section 5 of Article XI of the line 38 California Constitution. Therefore, the Le gislature clarifies that 97 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.
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