AMENDED IN ASSEMBLY JUNE 13, 2024
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
96 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 land use decision planning or permitting application for related to a housing de velopment project, as specified, w ould 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 require that the penalties set forth in its provisions only apply when the local land use decisions or actions a gency’s acts or omissions, as described, are arbitrary, capricious, or 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. 96 — 2 — SB 1037
line 1 Conversely, ne w construction of residences, particularly line 2 multifamily homes, induces a chain of mo ves, ultimately adding line 3 more housing units af fordable to middle- and lo w-income line 4 households.
line 5 (c) Restrictive zoning, land use planning, and b urdensome line 6 residential permitting practices and policies, at the local le vel in line 7 particular, are a major cause of the shortfall between California’s line 8 housing needs and the available supply of housing. For example, line 9 despite the oblig ations of local go vernments under the Housing line 10 Element La w to update their general plans, including required line 11 rezoning for additional sites to address projected housing needs, line 12 numerous cities and counties continue to delay and, at times even line 13 refuse, to undertake required actions to encourage, promote, and line 14 facilitate the de velopment of housing to accommodate the line 15 established regional housing need. The absence of updated housing line 16 elements that are substantially compliant with state la w causes line 17 unnecessary uncertainty and delay in appro ving housing line 18 development applications. This cumulati ve delay causes man y line 19 local governments to continue to fall behind in meeting their share line 20 of regional housing need.
line 21 (d) These restrictive practices and policies continue to persist line 22 despite other state wide reforms to e xpedite, streamline, and line 23 ministerially approve the planning and construction of housing of line 24 all types, including housing affordable to persons and families of line 25 lower income. While not exhaustive, these reforms can be found line 26 in the following provisions:
line 27 (1) Accessory dwelling units, as described in Sections 65852.150 line 28 and 65852.2 Chapter 13 (commencing with Section 66310) of line 29 Division 1 of Title 7 of the Government Code.
line 30 (2) By-right housing, in which certain multif amily housing is line 31 designated a permitted use, as described in Section 65589.4 of the line 32 Government Code.
line 33 (3) Reduced time for action on affordable housing applications line 34 under the appro val of the de velopment permits process, as line 35 described in Article 5 (commencing with Section 65950) of Chapter line 36 4.5 of Division 1 of Title 7 of the Government Code. line 37 (4) Streamlining housing approvals during a housing shortage, line 38 as described in Section 65913.4 of the Government Code. 96 SB 1037 — 3 —
line 1 (5) Streamlining agricultural emplo yee housing de velopment line 2 approvals, as described in Section 17021.8 of the Health and Safety line 3 Code.
line 4 (6) The Housing Crisis Act of 2019, as described in Chapter line 5 654 of the Statutes of 2019 (Senate Bill 330).
line 6 (7) Allowing four units to be b uilt on single-f amily parcels line 7 statewide, as described in Chapter 162 of the Statutes of 2021 line 8 (Senate Bill 9).
line 9 (8) The Middle Class Housing Act of 2022, as described in line 10 Section 65852.24 of the Government Code.
line 11 (9) The Affordable Housing and High Road Jobs Act of 2022, line 12 as described in Chapter 4.1 (commencing with Section 65912.100) line 13 of Division 1 of Title 7 of the Government Code. line 14 (10) Housing element law requirements and required rezoning line 15 to address unmet housing needs, as described in Chapter 974 of line 16 the Statutes of 2018 (Senate Bill 828) and Chapter 358 of the line 17 Statutes of 2021 (Assembly Bill 1398).
line 18 SEC. 2. Section 65009.1 is added to the Government Code, to line 19 read:
line 20 65009.1. (a) In any action brought by the Attorney General, line 21 on behalf of the Department of Housing and Community line 22 Development or in an independent capacity, to enforce the adoption line 23 of housing element revisions pursuant to the schedule set forth in line 24 subdivision (e) of Section 65588, or to enforce any state law that line 25 requires a city, county, or local agenc y to ministerially appro ve, line 26 without discretionary re view, any land use decision planning or line 27 permitting application for related to a housing development project, line 28 the city, county, or local agency shall be subject to the follo wing line 29 remedies:
line 30 (1) A ci vil penalty of, at minimum, ten thousand dollars line 31 ($10,000) per month, and not e xceeding fifty thousand dollars line 32 ($50,000) per month, for each violation, accrued from the date of line 33 the violation until the date the violation is cured. line 34 (2) (A) All costs of in vestigating and prosecuting this action, line 35 including e xpert fees, reasonable attorne y’s fees, and costs, line 36 whenever the Attorney General prevails in a civil action to enforce line 37 any state laws under this section.
line 38 (B) Awards imposed pursuant to this paragraph shall be paid line 39 to the Public Rights La w Enforcement Special Fund established line 40 by Section 12530.
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line 1 (3) (A) Other relief as the court deems appropriate, including line 2 equitable and injunctive relief, provisional or otherwise. line 3 (B) Any injunction, pro visional or otherwise, ordered by the line 4 court pursuant to this paragraph shall be deemed to be prohibitory, line 5 and not affirmative.
line 6 (b) The penalties set forth in this section shall only apply when line 7 the local land use decisions or actions agency’s acts or omissions line 8 described in subdivision (a) are arbitrary , capricious, entirely line 9 lacking in evidentiary support, contrary to established public policy, line 10 unlawful, or procedurally unfair. The purpose of this section is to line 11 ensure adequate remedies are a vailable to ensure that state la ws line 12 mandating streamlined, ministerial appro vals related to housing line 13 development projects, and the timely adoption of housing element line 14 revisions, are promptly and faithfully followed. line 15 (c) (1) Any civil penalty le vied pursuant to this section shall line 16 be deposited into the Building Homes and Jobs Trust Fund for the line 17 sole purpose of supporting the development of affordable housing line 18 located in the af fected jurisdiction. Expenditure of an y penalty line 19 moneys deposited into the Building Homes and Jobs Trust Fund line 20 pursuant to this subdi vision shall be subject to appropriation by line 21 the Legislature.
line 22 (2) Any penalty imposed pursuant to this section shall not be line 23 paid out of funds already dedicated to af fordable housing, line 24 including, but not limited to, very low, low-, and moderate-income line 25 households.
line 26 (3) To the extent permitted under the California Constitution, line 27 in the e vent a city , county , or local agenc y f ails to pay ci vil line 28 penalties imposed by the court, the court may require the Controller line 29 to intercept an y available state and local funds and direct those line 30 funds to the Building Homes and Jobs Trust Fund to correct the line 31 jurisdiction’s failure to pay.
line 32 (4) Notwithstanding paragraph (1), if the penalty moneys have line 33 not been e xpended five years after deposit, the penalty mone ys line 34 may be used, upon appropriation, to finance ne wly constructed line 35 affordable housing units in the state without an y geographic line 36 restrictions.
line 37 (d) The liability, penalties, and remedies imposed by this section line 38 are in addition to an y other liability , penalties, and remedies line 39 imposed by any other law.
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line 1 (e) The remedies available to the Attorney General pursuant to line 2 this section do not limit or af fect the r emedies available to any line 3 other party seeking to enforce the laws enumerated in subdivision line 4 (j) of Section 65585, including, but not limited to, the remedies in line 5 Article 14 (commencing with Section 65750) of Chapter 3, and line 6 attorneys’ fees pur suant to Section 1021.5 of the Code of Civil line 7 Procedure.
line 8 SEC. 3. The Legislature finds and declares that the lack of line 9 housing is a matter of state wide concern and is not a municipal line 10 affair as that term is used in Section 5 of Article XI of the line 11 California Constitution. Therefore, the Le gislature clarifies that line 12 Section 2 of this act adding Section 65009.1 to the Go vernment line 13 Code applies to all cities, including charter cities.
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