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CC - Item 5B - SB 910 (DUNN) - Housing Elements : Fines, Penalties, And Lawsuits - OpposeTO HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: FRANK G. TRIPEPI, CITY MANAGER DATE: APRIL 24, 2001 RE: SB 910 (DUNK)- HOUSING ELElvlENTS: FINES, PENALTIES, AND LAWSUITS - OPPOSE Attached for the City Council's review are copies of SB 910 (Dunn), current bill status, complete bill history, Senate committee analysis, and a joint letter of opposition from the League of California Cities and the California State Association of Counties. SB 910 passed out of the Senate Housing and Community Development Committee on April 2 " on a 5 -1 vote with Senator Monteith abstaining. Senator Ackerman cast the only NO vote. The bill is headed for the Senate Appropriations Committee. The members of the Senate Appropriations Committee are Senators Alpert, Battin, Bowen, Burton, Escutia, Johannessen, Johnson, Karnette, McPherson, Murray, Perata, Poochigian and Speier. This bill requires a court that finds that a local government's housing element is not in substantial compliance with the state law governing housing elements, to levy a penalty not to exceed $1,000 per unit ofthe total projected housing need for thejurisdiction, and award the plaintiff attorney's fees and costs. This bill further provides that in any action filed on or after January 1, 2002, challenging the validity of a housing element, there shall be a rebuttable presumption of non- validity of the housing element or amendment ifthe Department of Housing and Community Development (HCD) has found } that the element or amendment does not substantially comply with state law. The bill also includes language stating the Legislature's intent to withhold state funding from any city, county, or city and county that does not have a housing element in substantial compliance with state law, and to redistribute the withheld funds to those jurisdictions that are in compliance. This bill would also reduce your local subventions or the portion of the state's gas tax that is allocated directly to your cities if your housing element is found out of compliance with HCD. Starting with a 20% reduction and gradually increasing to 60% depending on how long you are out of compliance. Furthermore, your portion will be reallocated back into the pool and redistributed to those who are in compliance. Specifically, SB 910 was amended on March 27 °i to include a reduction in the percentage of the gas tax that a city or county would receive unless the local government has an adopted housing element that HCD has determined to be in substantial compliance by the following amounts: F COUNCIL AGENDA APR 2 4 2001. ITEM No. — • A 20% reduction for local governments whose third or subsequent revision of its housing element has not been found by FICD to be in substantial compliance within 180 days of the current deadline, • A 40% reduction for local governments whose third or subsequent revision of its housing element has not been found by FICD to be in substantial compliance within one year of the current deadline; • A 60% reduction for local governments whose third or subsequent revision of its housing element has not been found by HCD to be in substantial compliance within two years of the current deadline. SB 910 would also: (1) return the withheld funds to the total pool available for redistribution in the following month to eligible local governments; (2) states that an adopted housing element that has been self - certified shall be deemed approved by FICD unless a court finds that the jurisdiction's housing element is not in substantial compliance; and (3) requires FICD to provide to the Controller on a monthly basis a list of local governments whose third or subsequent housing element revisions have not been determined by HCD to be in substantial compliance, and shall report the deadline date for each of the local governments on that list. RECOMMENDATION: It is recommended that the City Council oppose SB 910 (Dunn) and authorize the Mayor to send letters of opposition. SB 910 Senate Bill - Status Page 1 of 1 CURRENT BILL STATUS MEASURE : S.B. No. 910 AUTHOR(S) Dunn (Coauthors: Senators Burton, Haynes, and Monteith). TOPIC General plans: housing elements. HOUSE LOCATION BEN +LAST AMENDED DATE 03/27/2001 TYPE OF BILL : Active Non - Urgency Appropriations 2/3 vote Required Non- State - Mandated Local Program Fiscal Non -Tax Levy LAST HIST. ACT. DATE: 09/05/2001 LAST HIST. ACTION Withdrawn from committee. Re- referred to Com. on RLS. TITLE An act to amend Sections 65587 and 65589.3 of, and to add Section 65585.5 to, the Government Code, relating to general plans, and making an appropriation therefor. http: / /www.leginfo.ca.gov /pub /bil I /senlsb_ 0901 - 0950/ sb _910_bill_20010405_status.html 4/11/2001 SB 910 Senate Bill - History Page 1 of 1 COMPLETE BILL HISTORY BILL NUMBER : S.B. No. 910 AUTHOR Dunn TOPIC General plans: housing elements. TYPE OF BILL : BILL HISTORY 2001 Active Non - Urgency Appropriations 2/3 Vote Required Non- State - Mandated Local Program Fiscal Non -Tax Levy Apr. 5 Withdrawn from committee. Re- referred to Com. on RLS. Apr. 4 Set for hearing April 23. Apr. 3 From committee: Do pass, but first be re- referred to Com. on APPR. (Ayes 6. Noes 1. Page 514.) Re- referred to Com. on APPR. Mar. 27 From committee with author's amendments. Read second time. Amended. Re- referred to committee. Mar. 20 Set for hearing April 2. Mar. 15 To Com. on H. & C.D. Feb. 26 Read first time. Feb. 25 From print. May be acted upon on or after March 27. Feb. 23 Introduced. To Com. on RLS. for assignment. To print. http: / /www.leginfo.ca.gov /pub /bill /sen/sb_0901- 0950/ sb _910_bill_20010405_history.html 4/11/2001 SB 910 Senate Bill - AMENDED BILL NUMBER: SB 910 AMENDED BILL TEXT AMENDED IN SENATE MARCH 27, 2001 INTRODUCED BY ^ •-- psa�4 Ray- , ^a MpHtP4 +i, Senator Dunn (Coauthors: Senators Burton, Haynes, and Monteith) FEBRUARY 23, 2001 An act to amend Sections 65587 and 65589.3 of and to add Section 65585.5 to, the Government Code, relating to general plans, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 910, as amended, Dunn. General plans: housing elements. (1) Existing law requires each city, county, or city and county to prepare and adopt a general plan for its jurisdiction that contains certain mandatory elements, including a housing element. A city, county, a city and county is required to submit a draft housing element or draft amendment to its housing element to the Department of Housing and Community Development for a determination of whether the draft complies with state law governing housing elements. Existing law, until June 30, 2009, exempts any local government within the jurisdiction of the San Diego Association of Governments from this review requirement if it instead submits to the department with its housing element a self- certification of compliance with state law. In an action brought by any party to review the conformity of a housing element with applicable state law, a court review shall extend to whether the housing element, or portion thereof or revision thereto, substantially complies with that law. This bill would require a court, on a finding that there is not substantial compliance, to award the plaintiff reasonable attorney's fees and costs and to levy a penalty not to exceed $1,000 per unit of the total projected housing need for the jurisdiction. The bill would provide that all penalties shall accrue to the Housing Rehabilitation Loan Fund. Because all money in this fund is continuously appropriated to the Department of Housing and Community Development for specified purposes, this bill would make an appropriation. (2) Existing law provides that, in any action filed on or after January 1, 1991, challenging the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if the Department of Housing and Community Development has found that the element or amendment substantially complies with the applicable law. This bill would provide that, in any action filed on or after January 1, 2002, challenging the validity of a housing element, there shall be a rebuttable presumption of nonvalidity of the element or amendment if the department has found that the element or amendment does not substantially comply. This bill would 4eelawe 4ie 'Rten€ e` the to "' ^a s#ate €aRa 4 -ean require the Controller to reduce by specified percentages the monthly allocation of funds disbursed under various fuel tax laws to any city, county, or city and county €4a4 a_,. R4 `a*e whose third or subsequent revision of its housing element is not in substantial compliance with state law and to redistribute the money 4A " R^R ei-'- G@unt' GE '" es Pagel of 3 http: / /www.leginfo.ca.gov /pub /bill /sen/sb_ 0901... /sb_ 910 _bill_20010327_amended_sen.htm 4/11/2001 SB 910 Senate Bill - AMENDED a ...,. e in the following month. The bill would require the department to report to the Controller monthly a list of noncompliant jurisdictions . The bill would state that, for the purposes of this provision, an authorized self- certification of a housing element shall be deemed to have been approved by the department unless a court finds that jurisdiction's housing element does not substantially comply with state law . Vote: 2/3. Appropriation: yes. Fiscal committee: yes. State - mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS SECTION 1. Section 65587 of the Government Code is amended to read: 65587. (a) Each city, county, or city and county shall bring its housing element, as required by subdivision (c) of Section 65302, into conformity with the requirements of this article on or before October 1, 1981, and the deadlines set by Section 65588. Except as specifically provided in subdivision (b) of Section 65361, the Director of Planning and Research shall not grant an extension of time from these requirements. (b) Any action brought by any interested party to review the conformity with the provisions of this article of any housing element or portion thereof or revision thereto shall be brought pursuant to Section 1085 of the Code of Civil Procedure; the court's review of compliance with the provisions of this article shall extend to whether the housing element or portion thereof or revision thereto substantially complies with the requirements of this article. If a court finds that any housing element or portion thereof does not substantially comply with the requirements of this article, the court, in addition to any other remedy allowed by law, shall award the plaintiff reasonable attorney's fees and costs and shall levy a penalty not to exceed one thousand dollars ($1,000) per unit of the total projected housing need for the jurisdiction as identified pursuant to Section 65589. Any penalties shall accrue to the Housing Rehabilitation Loan Fund established by Section 50661 of the Health and Safety Code. (c) If a court finds that an action of a city, county, or city and county, which is required to be consistent with its general plan, does not comply with its housing element, the city, county, or city and county shall bring its action into compliance within 60 days. However, the court shall retain jurisdiction throughout the period for compliance to enforce its decision. Upon the court's determination that the 60 -day period for compliance would place an undue hardship on the city, county, or city and county, the court may extend the time period for compliance by an additional 60 days. SEC. 2. Section 65589.3 of the Government Code is amended to read: 65589.3. (a) In any action filed on or after January 1, 1991, taken to challenge the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment substantially complies with the requirements of this article. (b) In any action filed on or after January 1, 2002, taken to challenge the validity of a housing element, there shall be a rebuttable presumption of the nonvalidity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment does not substantially comply with the requirements of this article. Page 2 of') http: / /www.leginfo.ca.gov /pub /bill /sen/sb_ 0901... /sb_ 910 _bill_20010327_amended_sen.htm 4/11/2001 SB 910 Senate Bill - AMENDED SEC. 3. Section 65585.5 is added to the Government Code, to read: 65585.5. (a) The Controller shall reduce by the following percentages the monthly allocation of funds dispersed pursuant to subdivision (d), (e), or (f) of Section 2104 and Sections 2105, 2106, and 2107 of the Streets and Highways Code to any city, county, or city and county unless the city, county, or city and county has an adopted housing element that the Department of Housing and Community Development has determined pursuant to Section 65585 to be in substantial compliance with the requirements of this article: (1) The allocation shall be reduced by 20 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within 180 days of the deadline established by Section 65588. (2) The allocation shall be reduced by 40 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within one year of the deadline established by Section 65588. (3) The allocation shall be reduced by 60 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within two years of the deadline established by Section 65588. (b) Any funds withheld from a city, county, or city and county pursuant to this section shall be added to the total pool of funds to be allocated and disbursed in the following month. (c) For the purposes of this section, an adopted housing element that has been self- certified pursuant to Section 65585.1 shall be deemed to have been approved by the department, unless a court finds that the jurisdiction's housing element does not substantially comply with this article. (d) The department shall report to the Controller by the 20th day of the month a list of cities, counties, and cities and counties whose third or subsequent housing element revisions, as of the 15th day of that month, have not been determined by the department to be in substantial compliance with the requirements of this article. The department shall also report the deadline date for the third or subsequent housing element revision established in Section 65588 for each respective jurisdiction on that list. h l ^1 F Gffi 4 ...J peyea .. G� f l e ................: .. ♦1-. v m� n i 1 e.F 4l e. e,c 44 e ^ e. 4i. +I.L.lrl f all aRy .. .i: ael ase li e�is 4 mi4Gj ele 4-4e ce.e.44e. 6999 9 - b ee; e ei -- 41 e_1 e........4 ..4 Page 3 of') http: / /www.leginfo.ca.gov /pub/ bill /sen/sb_ 0901... /sb_910_bill_20010327_amended _ sen.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis SENATE HOUSING & COMMUNITY DEVELOPMENT COMMITTEE Senator Joseph L. Dunn, Chair Bill No: SB 910 Hearing:April 2, 2001 Author: Dunn Fiscal:Yes Version: March 27, 2001 Consultant:Mark Stivers HOUSING ELEMENT ENFORCEMENT Background and Existing Law The Planning and Zoning Law requires cities and counties to prepare and adopt a general plan to guide the future growth of a community. Every general plan must contain seven elements: land use, circulation, housing, conservation, open- space, noise, and safety. A housing element must identify and analyze existing and projected housing needs, identify adequate sites with appropriate zoning to meet the housing needs of all income segments of the community, and ensure that regulatory systems provide opportunities for, and do not unduly constrain, housing development. Cities and counties must revise their housing elements every five years, following a staggered statutory schedule. Before each revision, the regional council of government (COG), in conjunction with the Department of Housing and Community Development (HCD), prepares a regional housing needs assessment (RHNA) and allocates to each jurisdiction in the region its fair share of the housing need for all income categories. Each community's identification of adequate sites must satisfy the housing allocation targets set by the COG. Prior to adopting or amending a housing element, a local government must submit a draft to HCD for review. The department is required to report within a specified time schedule its written findings as to whether or not the draft element or amendment substantially complies with the law. If HCD finds that the draft does not comply with the law, the local government is required to bring the draft into compliance or adopt the draft with written findings SB 910 Page 2 which explains why the jurisdiction believes the housing Page 1 of 7 http: / /www.leginfo.ca.gov/ pub / bill /sen/sb... /sb_ 910_ cfa _20010402_085614_sen_comm.htm 4/11/2001 S 910 Senate Bill - Bill Analysis element complies with the law despite the department's findings. Within 120 days of the final adoption of a housinc element or amendment, HCD is required to review the final document and report its findings as to whether the housing element complies with state law. Either the Attorney General or a private party may bring suit to enforce housing element law. In any such legal action, there is a rebuttable presumption that a jurisdiction's housing element is valid if HCD has found that the element substantially complies with state law. If a court finds that a local government has not substantially complied with the law, the court may order the jurisdiction to bring its housing element into compliance within 120 days and /or halt any or all further development in the community until the housing element is brought into compliance. Proposed Law Senate Bill 910 creates sanctions for local governments that fail to comply with state housing element law. Specifically, the bill: Creates a rebuttable presumption that, if HCD finds a jurisdiction substantially out of compliance with housing element law and a suit challenging the validity of the element is filed, the jurisdiction's element will be presumed by a court to be invalid. Makes explicit that plaintiffs who successfully challenge the validity of a community's housing element may recover their reasonable costs and fees. Requires a court to assess penalties against a jurisdiction whose housing element the court has found to be invalid. The court may determine the appropriate fine amount up to $1000 per unit of total projected housing need for the jurisdiction as identified in the regional housing needs assessment process. All fines are deposited in the state's Housing Rehabilitation Loan Fund, which is used to develop affordable rental housing through the Multifamily Housing Program. Requires the Controller to withhold a specified IN SB 910 Page 3 percentage of street and highway maintenance and repair funds from a local government that has not adopted a housing element that HCD has found to be in substantial compliance with the law. The amounts to be withheld are calculated according to the following schedule: ? For the first six months after the community's deadline date for the third or subsequent update of its housing element, no funds are withheld. ? After six months, 20% of each monthly allocation is Page 2 of 7 http: / /www.leginfo.ca.gov /pub/bill /sen/sb... /sb_ 910_ cfa _20010402_085614_sen_comm.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis withheld. After one year, 409 of each monthly allocation is withheld. After two years, 609 of each monthly allocation is withheld. Any funds withheld are required to be added to the total pool of funds to be distributed in the following month to all local governments according to existing formulas. The housing elements of jurisdictions within the San Diego Association of Governments who have elected to self- certify their housing elements under a special pilot program are deemed to have been approved by the department unless a court has found the element to be invalid. The bill further requires HCD to provide the Controller each month with a list of jurisdictions whose housing elements have not been approved and the dates for which each of these elements was due. Comments 1. Purpose of the bill In order for the private market to adequately address existing need and new demand for housing, local governments must adopt land use plans and regulatory systems which provide opportunities for, and do not unduly constrain, housing development. While the large majority of cities and counties in the state have adopted adequate housing elements, roughly 309 of the state's local jurisdictions have failed to comply with the law. The result is that developers cannot access land or the entitlements they need to produce new housing, exacerbating the state's housing crisis. By shirking their responsibility to make land available for their fair share of the region's housing needs, these local governments effectively raise the price of housing for working families 0 SB 910 Page 4 even higher and force surrounding jurisdictions to take on a larger housing burden. According to the author, current housing element law lacks teeth. Enforcement depends on private developers or non - profit lawyers suing local governments for non - compliance. In instances where the court does find cities or counties out of compliance, the remedies are limited. The court may order the jurisdiction to bring its housing element into compliance and may halt development in the community in the meantime. For local governments that do not have major commercial or industrial projects pending, this is equivalent to no remedy at all. While HCD currently reviews all housing elements for compliance with state law, there are almost no sanctions for jurisdictions whose elements are found to be inadequate. Recent legislation created the Jobs Housing Balance Improvement Program which rewards cities and counties for Page 3 of 7 http: / /www.leginfo.ca.gov /pub /bill /sen /sb... /sb_910_cfa 20010402_085614_sen _ comm.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis increasing the overall number of homes they permit. In some cases, incentives like these will provide sufficient reason for a local government to adopt a valid housing element. In other cases, communities may still choose to pass up financial incentives. In these instances, the author believes that sanctions are both necessary and appropriate to ensure that all communities meet their fair share of the state's housing need. 2. Good for the goose and good for the gander Current law creates a legal presumption that a local government's housing element is valid if it has been approved by HCD. However, no similar presumption exists if HCD finds the jurisdiction's housing element to be inadequate. The committee may wish to consider whether the presumption should work both ways as opposed to just in favor of a local government. 3. Automatic attorney's fees and costs In most cases where the adequacy of a housing element is successfully challenged in court, the plaintiff is able to receive reasonable fees and costs. State law allows the court to make such awards if the case results in enforcement of an important right affecting the general public and if a) a significant benefit has been conferred on the general public or a large class of persons; b) the necessity and financial burden of private enforcement are such to make C SB 910 Page 5 the award appropriate; and c) in the interest of justice such fees should not be paid out of any recovery. The committee may wish to consider whether enforcement of housing element law generally meets these tests so as to make an automatic award appropriate. 9. Ar guments in o The League of California Cities and the California State Association of Counties argue that local governments are not the only or even main reason that the state's housing needs are not being met. They believe that this bill casts local officials as uncaring about their communities and is overly punitive. They raise the following specific points: The rebuttable presumption of nonvalidity "elevates the opinion of an HCD staff member above the opinion of a judge" and subjects local governments to over - zealous interpretation of the law by the state. With respect to attorney's fees, the question of whether a significant benefit derives from the court challenge should be left for a judge to decide. The ability of the court to halt development is sufficient remedy for non - compliance with housing element law and monetary penalties are therefore inappropriate. Withholding state road repair funds from non- compliant jurisdictions will reward those who "collaborate" and punish those who "question the assumptions [of HCD] or Page 4of7 http: / /www.leginfo.ca.gov /pub /bill /sen/sb... /sb_910_cfa 20010402_085614_sen _ comm.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis mention local realities." As opposed to incentives, withholding funds will further jeopardize state and local government relations. Housing element compliance is a convenient target for the lack of progress on larger housing supply issues, such as local government tax reform, state financing for affordable housing, and construction defect litigation. Supp and O (3/27/) Support: Job - Center Housing Coalition (co- sponsor) California Rural Legal Assistance Foundation (co- sponsor) Western Center on Law and Poverty (co- sponsor) Apartment Association California Southern Cities Asian Law Alliance, San Jose Barbara Sanders and Associates 0 SB 910 Page 6 Berkeley Property Owners Association Burbank Housing Development Corp., Santa Rosa California Apartment Association California Building Industry Association California Church Impact California Federation of Labor, AFL -CIO California Housing Council, Inc. California Network of Neighborhood Programs California Reinvestment Committee California State Association of Electrical Workers California State Pipe Trades Council Chico Housing Improvement Program Children Now Children's Advocacy Institute CHISPA, Salinas City Heights Community Development Corporation, San Diego Civic Center Barrio Housing Corp., Santa Ana Coachella Valley Housing Coalition, Indio Coalition for Economic Survival, Los Angeles Community Resource Associates, Clayton Congress of California Seniors Council of Community Housing Organizations, San Francisco East Bay Asian Local Development Corporation, Oakland Eden Housing, Hayward Enterprise Foundation, Los Angeles Friends Committee on Legislation of California Friends of the Homeless, Santa Rosa General Assistance Advocacy Project, San Francisco Great Northern Corporation, Weed Gubb & Barshay, LLP, San Francisco Harbor Interfaith Shelter, San Pedro Homeward Bound of Marin Page 5 of 7 htip: / /www.leginfo.ca.gov /pub /bill /sen/sb... /sb_ 910_ cfa _20010402_085614_sen_comm.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis Housing Authority of the County of Santa Clara Inglewood Neighborhood Housing Services JRT and Associates, Sausalito La Raza Centro Legal, Inc., San Francisco Los Angeles Housing Law Project Lutheran Office of Public Policy California Mercy Housing California Mid - Peninsula Housing Coalition, Redwood City Minority Apartment Owners Association IN SB 910 Page 7 Napa Valley Community Housing Neighborhood House Association, San Diego Nevada County. Housing and Community Development, Nevada City Older Women's League Orange County Community Housing Corp., Santa Ana Pajaro Valley Housing Corporation, Watsonville People's Seif -Help Housing Corporation, San Luis Obispo Preservation Properties, Santa Monica Protection and Advocacy, Inc. Related Companies of California Renee Franken Associates, Sacramento Rubicon Programs, Inc., Richmond Rural Communities Housing Development Corporation, Ukiah Sacramento Gray Panthers Sacramento Mutual Housing Association Sacramento Neighborhood Housing Services Santa Barbara Rental Property Association Santa Clara County Housing Action Coalition Senior Housing Action Collaborative, San Francisco Shelter Partnership, Los Angeles Sisters of Saint Joseph's of Carondelet, Los Angeles South County Housing, Gilroy Southern California Association of Non - Profit Housing St. Peter's Housing Committee, San Francisco The Tenderloin Housing Clinic The Agora Group, Goleta The Fair Housing Council of San Diego Venice Community Housing West Hollywood Community Housing Corporation Western States Council of Sheet Metal Workers Westside Fair Housing Council, Los Angeles WNC Associates, Costa Mesa Opp osition . City City City City City City C of of of of of of 3iifornia State Association of Counties Arcata Gustine Concord Foster City Monrovia National City Page 6 of 7 http: / /www.leginfo.ca.gov /pub /bill /sen/sb... /sb_910_cfa 20010402_085614_sen _ comm.htm 4/11/2001 SB 910 Senate Bill - Bill Analysis R SB 910 Page 8 City of Sand City City of Stockton League of California Cities Page 7 of 7 littp:// www. leginfo. ca. gov /pub/bill /sen/sb... /sb_910_cfa 20010402_085614_sen _ comm.htm 4/11/2001 League of California Cities 1400 K Street, 4 "' Floor Sacramento, CA 95814 (916) 658 -8200 March 21. 2001 Senator Joe Dunn State Capitol, Room 2080 Sacramento, CA 95814 California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA 95814 (916) 327 -7500 RE: SB 910 (Dunn). Housing Elements. Fines, Penalties, and Litigation. Notice of Opposition Dear Senator Dunn: We regret to inform you that the League of California Cities (League) and California State Association of Counties (CSAC) OPPOSE your SB 910 as introduced. In brief, this measure: 1) Establishes a legal rebuttable presumption of nonvalidity for a housing element or amendment if the Department of Housing and Community Development (HCD) has found that the element or amendment does not substantially comply with state law, for any lawsuit filed after January 1, 2002. 2) Requires a court to levy a penalty up to $1,000 per unit of the total projected housing need for a city or county, if the court finds that a local government's housing element is not in substantial compliance with the state law governing housing elements, in addition to awarding plaintiffs attorney's fees and costs. 3) Establishes legislative intent to withhold state funding from any city, county, or city and county that does not have a housing element in substantial compliance with state law, and to redistribute the withheld funds to those jurisdictions that are in compliance. Before addressing the specifics of this proposal, we would like to convey a perspective from local governments, that are just one partner in the shared responsibility of meeting the housing needs of the state's citizens. We completely object to this measure which appears to cast local governments and their locally elected officials in a very negative light, such that they must be fined, sued, forced, and threatened into compliance with the state over a state supervised process called the housing element. Local elected officials care deeply about their communities and the many needs of their constituents. Local elected officials constantly struggle with limited property tax resources, and scarce housing subsidies from either the federal or state level to meet the affordable housing needs of their citizens. Local elected officials and their planning staff pack conference rooms at HCD workshops and forums to gather information on what is needed for their housing elements. They allocate tax dollars to hire staff and consultants to help them through the Byzantine housing element process that extracts significant costs, time, and attention with sometime questionable results. We strongly disagree with casting local elected officials as uncaring about their communities and question the productiveness of such an offensive approach. As you know, California's 475 cities and 58 counties vary greatly in size, climate, topography and economic conditions. Some cities are land- locked with growing populations and little available land, other cities are facing booming job markets with high paid workers where the competition for housing drives the price of the smallest cottage over half a million dollars. Still other cities, with adjacent base closures, are in depressed economic markets with blocks of vacant housing and retail stores. While counties are constantly relied upon to provide open space, habitat preservation and agricultural opportunities, and often scrutinized by labeling county development as "sprawl." All of these cities and counties, through their elected representatives, are striving to improve the quality of life and opportunities for their citizens. Having available affordable housing plays a critical role in the creation of a community, but as you know, just as in the Legislature, housing is not the only issue. Public safety, libraries, education, parks, public works, flood control, air quality, protecting the environment, open space, protecting agricultural lands, these are other issues which elected local officials must grapple with, in addition to meeting an array of existing stale mandates and providing state services in the health, welfare and justice arena, as well as preparing for the many additional state mandates proposed in the Legislature each year. Now that some context has been established, here are our specific issues with this bill: 1) This Bill Shifts the Legal Standard From Innocent Until Proven Guilty to Guilty Until Proven Innocent: Under existing law, if HCD determines that a housing element is in substantial compliance with state law, the housing element is presumed to be valid, thus creating for the local government a legal "safe harbor" which protects a local government in a legal challenge to its general plan: a very valuable feature. However, under existing law, section 65585(f) Government Code, local governments have the choice of either amending the draft element to comply with HCD's recommendations, or to self - certify and adopt the draft element with findings on why the local government believes that the draft element substantially complies with the requirements of the law despite HCD's findings. This flexibility has the effect of tempering the potential for an overly - zealous interpretation of the law by the state. Just because a state official fails to pronounce a housing element in substantial compliance with state law does not mean a judge will feel the same way. Therefore, if a local government believes that a state official is requesting unreasonable changes to a local housing element, and their attorney advises them that they have a well - prepared element that complies with state law, then the local government is free to run the risk of being challenged without the safe harbor provision, if they feel that they can fairly argue before a Court that their element complies with the provisions of state law even absent the "substantial compliance" blessing by HCD. This bill, however, by establishing a rebuttable presumption of nonvalidity, creates a legal presumption that a local housing element is invalid if it has not been deemed in substantial compliance with slate law by HCD, and therefore subjects the local government to all the fines, penalties, and legal actions promoted by this legislation. What is particularly offensive about this approach is the presumption that the local government is a bad actor and somehow criminal when HCD fails to determine their housing element in compliance, when the reality may be that the local government has struggled to comply with the edicts of the state and has produced an element that meets 98 percent of HCD's requirement, but the state rejects the entire element over a few minor points. Furthermore, the "guilty until proven innocent" approach has the effect of injecting state workers directly into the "approval" business of local general plans. Those local officials who fail to respond to every potentially questionable demand of the state official reviewing their element, will be exposed to a barrage of fines and penalties for daring to question the discretion, wisdom, and rationale of state officials. In short, this is a recipe where the "rebuttable presumption of nonvalidity" elevates the opinion of an HCD staff member above the opinion of a judge. 2) Effect of "Presumption of Nonvalidity" on Pending Development Projects Merits Consideration: If there is a rebuttable presumption on "nonvalidity" for any housing element, which HCD fails to view in substantial compliance, then there are some serious potential consequences for both local governments and developers. Aside from all the fines, penalties, and additional diversions of local revenues by the state against the local government, the presumption of nonvalidity immediately calls into question the validity of the entire general plan because local general plans are required to be internally consistent. If the local general plan is inconsistent, than any local decision made by the local government -- issuing building permits, approving subdivision maps, adoption of zoning ordinances, approving development projects - -based upon that general plan are also subject to legal challenge. See Government Code section 65755; Camp v. Board of Supervisors, 123 Cal. App. 3d 334, 358 -60 (1981); Save El Toro Assn v. Days, 74 Cal. App. 3d 64, 70 -74 (1977). Those who oppose growth in this state will no doubt welcome this new opportunity to litigate using the legal leg -up provided by the presumption of nonvalidity. 3) Mandatory Attorney's Fees SB 910 ignores the existing well - established way of determining whether plaintiffs are entitled to their attorneys' fees and makes the award of fees automatic, thus encouraging additional litigation. There are currently two sources of attorneys' fees awards: Government Code section 800 and the private attorney general theory (CCP 1021.5). Section 800 awards fees when the action of the city was the result of arbitrary or capricious action. (An error by an official, even if clearly erroneous, does not rise to the level of arbitrary or capricious action). The cap on this award is $7500. The greater exposure is under the private attorney general theory. Under CCP 1021.5, the court MAY award fees if (a) a significant benefit has been conferred on the general public or a large class of persons; (b) the necessity and financial burden of private enforcement is such as to make the award appropriate, and (c) the case involves an important right affecting the public interest. The focus is on the impact of the action in achieving the desired result, not the manner of its resolution. These questions of whether there has been a "significant benefit" and whether it was necessary to bring the litigation are questions that should be left for a judge to decide. 4) This Bill Treats Local Elected Officials As Criminals: This bill imposes a "penalty" of up to $1,000 per unit of a jurisdiction's regional housing need if a court finds that a housing element or a portion of it fails to substantially comply with the requirements of the law. For instance, this bill proposes to levy a fine of $66.7 million dollars, in addition to whatever additional penalties the Legislature plans to attach to this bill, against the Cities of Moreno Valley, Hemet, Victorville, Chino Hills, and the Counties of Riverside and San Bernardino for having the audacity to contest a flawed Regional Housing Needs Allocation process in their current lawsuit against both the Southern California Association of Governments and HCD based on 12- year -old census data that fails to reflect the economic realities of the region and proposes an additional 66,700 units be allocated to local governments who contend their communities have an over - supply of housing and lack available jobs for their residents. 5) Bill Ignores the Existing Powers of the Courts To Enforce Housing Element Law: Under existing law, if a court ruled that a local government's general plan failed to comply with existing law, the community's general plan would be suspended until an adequate plan was adopted. Section 65755 already re wires a court to include in an order or judgment, which invalidates a local general plan one or more of the following provisions: (1) Suspend the authority of the city, county, or city and county to issue building permits, or any category of building permits, and all other related permits. (2) Suspend the authority of the city, county, or city and county, to grant any and all categories of zoning changes, variances, or both. (3) Suspend the authority of the city, county, or city and county, to grant subdivision map approvals. Is this not sufficient enforcement authority for the courts? We find it inappropriate for the state to exact additional fines and divert additional local revenues if a local government happens to have a difference of opinion with a state plan reviewer who may not fully understand the trade -offs and difficult choices facing the local elected officials. 6) Proposal to Divert Additional Local Revenues: In addition to all the fines and penalties proposed in this bill to be levied against any local government that questions the facts, figures, or interpretation of state employees of HCD, this bill contains intent language as a placeholder for additional provisions which will be added into this bill, to divert additional local revenues away from local governments to other local governments who have housing elements which HCD has determined to be in compliance with state law. Those who collaborate will receive rewards, those who question the assumptions, or mention local realities are penalized. Additional fines, penalties, threats, admonitions and lawsuits from the state, as opposed to grants, consistent streams of affordable housing funding, property tax return, and reforming the broken state of state -local finance, will only serve to widen the gap in the relationship between state and local government who need to work together in order to solve this critical problem facing the State. 7) Housing Element Compliance Convenient Target For Larger Housing Issues: Levying additional fines, penalties, and generating additional lawsuits against local governments over housing element compliance may give some comfort that the dramatic housing issues facing the state will suddenly be addressed. This is hardly the case. Housing production is ultimately the result of many forces in the marketplace and depends heavily on the state of the local economy, land values, lifestyle choices of citizens, and the private developers who respond to those market signals and produce products, which stand to generate the maximum profit. Local governments plan for housing, but it is ultimately the private market responding to the desires of the marketplace, which determine what is built. Constructing affordable housing in a state with high land values is a difficult task that often cannot be done unless significant levels of government subsidies are provided. The League and CSAC have consistently supported a stream of state funding for affordable housing, but over the last ten years the state has provided little housing funds, outside the one -time boost in last year's budget to address these needs. Further, the effects of the changes the federal 1986 Tax Reform Act, which removed much of the private incentive to construct and own rental housing, and contributed to the decline in multifamily production in this state from 148,000 units in 1986, to 36,000 in 2000, cannot be ignored. Construction defect litigation surrounding condominium construction has also led to a significant reduction in a form of housing that proved highly popular in the 1980's. Finally, the concerns of the electorate over open space and preserving quality of life in many high - growth areas of the state must not be forgotten, given the over 50 local land use initiatives which were on ballots last November. Above are the specific issues we have with this legislation. We are not, however, opposed to a discussion of the full range of issues associated with the housing element. Local elected officials have many issues themselves with this process which relies heavily on procedure, process, and paperwork, in addition to the full range of discussions which take place with the citizens in our communities, to whom we are ultimately held accountable. If your initial desire is to get our attention on this issue, that has been accomplished. If your intention is to start a comprehensive dialogue with all affected parties - -the state, local governments, COG's, housing advocates, developers, and others - -over how the housing element process can be improved, we would welcome that discussion. However, we must OPPOSE this legislation for all the reasons previously stated. If you have any questions please feel free to contact Daniel Carrigg at (916) 658 -8222 or DeAnn Baker at (916) 327 -7500 ext. 509. Sincerely, Daniel Carrigg Legislative Representative League of California Cities Counties DeAnn Baker Legislative Representative California State Association of cc: Members and Consultant, Senate Housing and Community Development Committee Senator John Burton Senator Ray Haynes Senator Dick Monteith Senator Tom Torlakson Assembly Member Alan Lowenthal Assembly Member Pat Wiggins Julie Bornstein, Director, Department of Housing and Community Development Mike Gotch, Legislative Secretary, Governor's Office t3. SB 910 (DUNN) —HOUSING ELEMENTS: FINES, PENALTIES, AND LAWSUITS — OPPOSE MOTION BY MAYOR PRO TEM BRUESCH, SECOND BY COUNCILMEMBE CLARK that the Council oppose SB 910 (Dunn) and authorize the Mayor to send letters of opposition. Vote resulted: Yes: Bruesch, Taylor, Imperial, Clark No: None Absent: Vasquez Abstain: None The Mayor declared said motion duly carried and so ordered. C. GOVERNOR'S MEMORANDUM OF UNDERSTANDING WITH SCE MOTION BY MAYOR PRO TEM BRUESCH, SECOND BY I .. COUNCILMEMBER CLARK that the Council support the Governor's MOU with SCE and authorize the Mayor and Council to send letters of support to the State Legislators and Governor. Before vote could result, more discussion ensued. Councilman Taylor asked Mr. Tripepi to relate the type of opposition encountered when trying to find solutions to developing more power. Frank Tripepi, City Manager, stated that the City of Industry, which has a large industrial and business base in their community, is in the process of trying to develop a power plant on a 12 -acre site. Mr. Tripepi continued that they are discovering that building a powerl plant is a difficult process for a municipality. The four big out -of -state generators (Reliant Energy, Enron, Southern and Duke Power) have pre- purchased, up to 15 years in the future, turbines and other inventory essential to building a power plant. Mr. Tripepi stated that if a municipality wants to build a power plant, they will have to form a partnership with one of those companies in order to get the plant built. Councilman Taylor remarked that it is amazing how things can be shut down when someone tries to come up with a solution. Mr. Taylor explained that turbines are only built when a generation plant is going to be approved. Mr. Taylor asked if SCE can build any more power plants. John Steelesmith, SCE, explained that when the proposals from the PUC were presented for deregulation, SCE recommended having a holding company that the utility will then be an affiliate of That was to allow the holding company to be unregulated and to be able to build other power - generating affiliates. Mr. Steelesmith continued that SCE did this with the approval of all the regulatory procedures in the State and it became Edison Mission Energy. Mr. Steelesmith stated that the State has been historically strict, and that in the approval process the State conditioned that Mission Energy could not build a power plant in California. However, an agreement has since been worked out whereby the State will now allow Mission Energy to come back into the State and build a power plant in Bakersfield. SCE agreed to buy what was to be a power plant project, build the plant, and run it at cost with a reasonable return approved by the State of 11.6 %. Mr. Steelesmith explained that the 11.6% is an extreme contrast compared to what the out -of -state generators returns are. Councilman Bruesch stated that the big four generators, in partnership with other corporations, have 8 to 10 generation plants planned to come on -line within the next two years. Mr. Bruesch stated that one reason those companies have pre - purchased the turbines is that foreign manufacturers cannot produce a turbine to meet the air quality standards of California or the U.S. CCMIN:4.24 -01 Page 93 I. J