HomeMy WebLinkAboutItem NAGENDA REPORT
DATE:
June 11, 2001
T0:
Honorable Mayor and City Council
THRU:
John B. Bahorski, City Manager
FROM:
Lee Whittenberg, Director of Development Services
SUBJECT:
Opposition Letter re: SB 910 - Housing Element
SUMMARY OF REOUEST:
Authorize Mayor to sign letter opposing Senate Bill (SB) 910. Instruct Staff to forward to
the Planning Commission for information. Receive and File Status Report.
BACKGROUND:
The City Council received a staff report and authorized sending an opposition letter
regarding SB910 on April 23, 2001. Since that time, various State Senate Committees'
have considered and amended this bill. Those amendments have not been responsive to
the concerns of our previous letter. The League of California Cities and many cities
throughout the State have opposed this legislation.
SB 910 now requires the courts to impose stiff penalties against local government
housing elements found to be non - compliant with State law. Penalties for cities under
100,000 population could not exceed $100,000, and could include an award for plaintiff
attorney's fees and costs. This bill further provides that any action Sled on or after
January 1, 2002, challenging the validity of a housing element, would include a
rebuttable presumption of non - validity of the housing element or amendment if the
Department of Housing and Communiry 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.
SB 91 was amended on May 24, and at that time the bill sponsor, Senator Dunn,
indicated his commitment to remove the current local gas tax penalties in the Assembly
and replace then with penalties attached to the backfill of local Vehicle License Fee
revenues. This action will have the potential to directly affect the general fund revenues
Agenda Item L
C:Wy()..u�LEGISLATSB 910.CC Suffka n2doo W6-06 -0I
City Opposition Letter to SB 910— Housing Element
City Council StaffReport
June 11, 2001
of the City, and could result in unanticipated policy impacts on the State promises to
maintain this funding source for local government.
SB 910's recent amendments also include three important provisions. First, the bill
would require that withheld funds be returned to the total pool available for redistribution
in the following month to eligible local governments. Second, it states that an adopted
housing element that has been self - certified shall be deemed approved by HCD unless a
court finds that the jurisdiction's housing element is not in substantial compliance. Last,
the bill requires HCD to provide to the Controller a monthly list of local governments
whose third or subsequent housing element revisions have not been determined by HCD
to be in substantial compliance, and report the deadline date for each of the local
governments on that list.
The focus on fiscal penalties against local governments if a state employee reviewing a
Housing Element determines it to not be in compliance with State legislation, as provided
for in the legislation is extremely disturbing. Housing element law is a much debated and
litigated portion of the State law, and the position of allowing a State reviewer of a
document having a direct fiscal impact upon local government is inappropriate. There
are existing provisions of law that allow a judge of appropriate jurisdiction to review the
adequacy of a local government housing element and detennine if it is in substantial
compliance with State law, and to impose appropriate penalties on the local jurisdiction if
found not be in substantial compliance. To delegate this authority to appointed
employees of a State agency is inappropriate.
FISCAL IMPACT:
Potential loss of General Fund revenues if HCD determines the Housing Element
Revision is not in compliance with the provisions of State law. Loss of funds could
exceed $100,000 plus additional amounts if vehicle license fee revenues were also to be
reduced. The City currently receives approximately $1,300,000 in vehicle license fee
revenues.
RECOMMENDATION:
Authorize Mayor to sign letter opposing Senate Bill (SB) 910. histruct Staff to forward to
the Planning Commission for information Receive and File Status Report.
e Whitten erg
Director of Development Serviye
ss 910.cc sniff Report 2
City Opposition Letter to SB 910 — Housing Element
City Council Staff Report
June 11, 2001
Attachments: (3)
Attachment 1: City Comment Letter Opposing SB 910
Attachment 2: SB 910, as amended on May 24, 2001
Attachment 3: City Comment Letter Opposing SB 910, dated April 23,
2001
SB 910.CC Stetrary A2
City Opposition Letter to SB 910— Housing Element
City Couneil StafRepon
June 11, 2001
ATTACHMENT 1
CITY COMMENT LETTER OPPOSING SB 910
SB 910.CC Sntfi Re n 2
June 11, 2001
Senator Joe Dunn
State Capitol, Room 2080
Sacramento, CA 95814
SUBJECT: NOTICE OF CONTINUED OPPOSITION - SB 910
(DUNN). HOUSING ELEMENTS: FINES, PENALTIES,
AND LITIGATION
Dear Senator Dunn
The City of Seal Beach has previously expressed our OPPOSITION TO SB 910 in a
letter dazed April 23, 2001. We regret to inform you that the City of Seal Beach
continues to OPPOSE your SB 910, as amended on May 24, 2001, and as indicated to be
amended further to substitute Vehicle License Fees for Gas Tax revenues as a penalty
loss of revenue to local governments for a Housing Element determined by the staff of
the State Department of Housing and Community Development to not be in substantial
compliance with the State Housing Element law provisions.
This bill treats local elected officials as criminals by imposing substantial fiscal penalties
as determined by appointed officials of a State agency, and stating legislative intent for
the state to divert additional local revenues away from local government, when state plan
reviewers fail to deem an element in substantial compliance. This approach is offensive,
and ignores the already substantial powers of a Court of appropriate jurisdiction to deal
with invalid general plans under Section 65755 of the Government Code. Legislators
should carefully consider the consequences of allowing appointed State officials to
determine an issue that can have such a detrimental impact to local government revenues.
This measure shifts the legal standard for housing element review from innocent until
proven guilty to guilty until proven innocent, by declaring that a local housing element is
presumed invalid in a court if a local government fails to comply with every whim of the
state reviewer. This change has the effect of elevating the opinion a state plan reviewer
above the opinion of a judge, and causing serious consequences for both local
governments and developers, because any local decision made by the local government- -
issuing building permits, approving subdivision maps, adoption of zoning ordinances,
C:Wy Docum n U EGISI MB 910.CC Comment Um 2.docV.W 11 -01
City of Seat Beach Opposition Letter re:
Sit 910 — Housing Elements
June 11, 2001
approving development projects - -based upon that general plan become subject to legal
challenge.
This measure establishes a legal rebuttable presumption of non - validity for a housing
element if the Department of Housing and Community Development (HCD) has found
that the element or amendment does not substantially comply with state law, allows a
court to levy a penalty up to $100,000 in the particular case of our city, in addition to
mandatory attorney's fees and costs, and establishes legislative intent to withhold
additional state funding, and to redistribute the withheld funds to those jurisdictions that
HCD deems in compliance.
We completely object to this measure which attempts 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. We care deeply about our community and the many needs
of our constituents. Due to the lack of state -local fiscal reform, even after years of state
surpluses, we struggle to meet the full range of needs for our community with limited
property tax resources, and attempt to provide housing for our citizens with little help
from the state or federal level to meet the affordable housing needs of our citizens.
Therefore, we are offended by this measure and its focus on fines, penalties, threats from
the state over the review of our local housing element by state officials, who may never
have even been to our city, and may care little about the variety or complexity of the
issues that we balance every day.
Addressing this state's many housing needs requires a productive working relationship
between local governments, housing advocates, and the state, and that discussion must
involve the full scope of issues which affect housing production. This proposed
legislation is wrong.
The City of Seal Beach would urge you to reconsider this legislation and to more fully
evaluate mechanisms that will directly address the issues of housing production within
the State. There are ongoing efforts of the League of California Cities, the American
Planning Association and the Department of Housing and Community Development to
address comprehensive reforms to the housing element process. This legislation does not
foster an environment of cooperative discussion for these important efforts.
We ask your thoughtful consideration of reviewing the ongoing activities of the above
working group, which the Director of the State Department of Housing and Community
Development has expressed a desire to participate in. These efforts should be directed to
focus on programs that that provide real fiscal incentives to actually produce new housing
units, reform the current Regional Housing Needs Assessment (RHNA) process, and
develop a more efficient and consistent review process of housing elements by the State
Department of Housing and Community Development.
Sa 91oCC Comment Isms 2
City of Sea( Beach Opposition Letter re:
SB 910— Housing Elements
June 11, 2001
Sincerely,
46t>—-
Mayor, City of Seal Beach
cc: Members and Consultant, Senate Housing and Community Development
Committee
Members and Consultant, Senate Transportation Committee
Senator Ross Johnson
Senator John Burton
Senator Ray Haynes
Senator Dick Monteith
Senator Tom Torlakson
Members and Consultant, Assembly Housing Committee
Assembly Member Tom Harman
Assembly Member Alan Lowenthal
Assembly Member Pat Wiggins
Julie Bornstein, Director, Department of Housing and Community Development
Mike Gotch, Legislative Secretary, Governor's Office
Dan Carrigg, Legislative Representative, League of California Cities
Janet Huston, Orange County Division, League of California Cities
SB 910.CC comment Lm ,2
City Opposition Letter to SB 910— Housing Element
City Council Staff Report
June 11, 1001
ATTACHMENT 2
SB 910, AS AMENDED ON MAY 24, 2001
SB 910 CC Steff Report 2
AMENDED IN SENATE MAY 24, 2001
AMENDED IN SENATE MAY 8, 2001
AMENDED IN SENATE APRIL 24, 2001
AMENDED IN SENATE MARCH 27, 2001
SENATE BILL No. 910
Introduced by Senator Dunn
(Coauthors: Senators Burton, Haynes, and Monteith)
February 23, 2001
An act to amend Sections 65587 65584, 65587, and 65589.3 of, and
to add Section 65585.5 to, the Government Code, relating to general
plans.
LEGISLATIVE COUNSELS 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 One part of the
housing element is an assessment of housing needs and an inventory of
resources and constraints relevant to meeting those needs. The
assessment includes the locality 's share ofmgional housing needs. That
share is determined by the appropriate council ofgovernments, subject
to revision by the Department of Housing and Community
Development.
This bill would provide that, for a council of governments whose
members have a combined population of more than 10,000,000, a
resolution to adopt the allocation of regional housing need shall be
I-
SB 910 —2—
approved by a majority of voting members from each county on the
governing board.
(2) Under existing law, a city, county, or 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 authorize a court, on a finding that there is not
substantial compliance, to award the plaintiff reasonable attorney's fees
and costs and require the court to levy a penalty not to exceed specified
amounts based on the population of the city, county, or city and county.
The bill would provide that all penalties shall accrue to the Housing
Supply Account, which the bill would create in the Housing
Rehabilitation Loan Fund, and that no money in that account shall be
expended except upon appropriation by the Legislature.
(4)-
(3) 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 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 whose third or
subsequent revision of its housing element is not in substantial
compliance with state law or that during the previous housing element
cycle did not adopt a housing element determined by the department to
95
-3—
SB 910
be in substantial compliance with state law, and to hold the money in
an escrow account until the department determines there is substantial
compliance. 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 fords that jurisdiction's
housing element does not substantially comply with state law.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State - mandated local program: no.
The people of the State of California do enact as follows
1 SECTION 1. Section 65584 of the Government Code is
2 amended to read.'
3 65584. (a) For purposes of subdivision (a) of Section 65583,
4 the share of a city or county of the regional housing needs includes
5 that share of the housing need of persons at all income levels within
6 the area significantly affected by a general plan of the city or
7 county. The distribution of regional housing needs shall, based
8 upon available data, take into consideration market demand for
9 housing, employment opportunities, the availability of suitable
10 sites and public facilities, commuting patterns, type and tenure of
11 housing need, the loss of units contained in assisted housing
12 developments, as defined in paragraph (8) of subdivision (a) of
13 Section 65583, that changed to non -low- income use through
14 mortgage prepayment, subsidy contract expirations, or
15 termination of use restrictions, and the housing needs of
16 farmworkers. The distribution shall seek to reduce the
17 concentration of lower income households in cities or counties
18 which already have disproportionately high proportions of lower
19 income households. Based upon population projections produced
20 by the Department of Finance and regional population forecasts
21 used in preparing regional transportation plans, and in
22 consultation with each council of governments, the Department of
23 Housing and Community Development shall determine the
24 regional share of the statewide housing need at least two years
25 prior to the second revision, and all subsequent revisions as
26 required pursuant to Section 65588. Based upon data provided by
27 the department relative to the statewide need for housing, each
95
I
SB 910
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
—4—
council of governments shall determine the existing and projected
housing need for its region. Within 30 days following notification
of this determination, the department shall ensure that this
determination is consistent with the statewide housing need. The
department may revise the determination of the council of
governments if necessary to obtain this consistency. The
appropriate council of governments shall determine the share for
each city or county consistent with the criteria of this subdivision
and with the advice of the department subject to the procedure
established pursuant to subdivision (c) at least one year prior to the
second revision, and at five -year intervals following the second
revision pursuant to Section 65588. For a council ofgovernments
whose members have a combined population of more than
10,000,000 persons, a resolution to adopt the allocation of
regional housing need shall be approved by a majority of voting
members from each county on the governing board. The council
of governments shall submit to the department information
regarding the assumptions and methodology to be used in
allocating the regional housing need. As part of the allocation of
the regional housing need, the council of governments, or the
department pursuant to subdivision (b), shall provide each city and
county with data describing the assumptions and methodology
used in calculating its share of the regional housing need. The
department shall submit to each council of governments
information regarding the assumptions and methodology to be
used in allocating the regional share of the statewide housing need.
As part of its determination of the regional share of the statewide
housing need, the department shall provide each council of
governments with data describing the assumptions and
methodology used in calculating its share of the statewide housing
need. The councils of governments shall provide each city and
county with the department's information. The council of
governments shall provide a subregion with its share of the
regional housing need, and delegate responsibility for providing
allocations to cities and a county or counties in the subregion to a
subregional entity if this responsibility is requested by a county
and all cities in the county, a joint powers authority established
pursuant to Chapter 5 (commencing with Section 6500) of
Division 7 of Title 1, or the governing body of a subregional
agency established by the council of governments, in accordance
95
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
-5— SB 910
with an agreement entered into between the council of
governments and the subregion] entity that sets forth the process,
timing, and other terms and conditions of that delegation of
responsibility.
(b) For areas with no council of governments, the department
shall determine housing market areas and define the regional
housing need for cities and counties within these areas pursuant to
the provisions for the distribution of regional housing needs in
subdivision (a). If the department determines that a city or county
possesses the capability and resources and has agreed to accept the
responsibility, with respect to its jurisdiction, for the identification
and determination of housing market areas and regional housing
needs, the department shall delegate this responsibility to the cities
and counties within these areas.
(c) (1) Within 90 days following a determination of a council
of governments pursuant to subdivision (a), or the depattmem's
determination pursuant to subdivision (b), a city or county may
propose to revise the determination of its share of the regional
housing need in accordance with the considerations set forth in
subdivision (a). The proposed revised share shall be based upon
available data and accepted planning methodology, and supported
by adequate documentation.
(2) Within 60 days after the time period for the revision by the
city or county, the council of governments or the department, as
the case may be, shall accept the proposed revision, modify its
earlier determination, or indicate, based upon available data and
accepted planning methodology, why the proposed revision is
inconsistent with the regional housing need.
(A) If the council of governments or the department, as the case
may be, does not accept the proposed revision, then the city or
county shall have the right to request a public hearing to review the
determination within 30 days.
(B) The city or county shall be notified within 30 days by
certified mail, return receipt requested, of at least one public
hearing regarding the determination.
(C) The date of the hearing shall be at least 30 days from the
date of the notification.
(D) Before making its final determination, the council of
governments or the department, as the case may be, shall consider
comments, recommendations, available data, accepted planning
95
SB 910
1
2
3
4
5.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
—6—
methodology, and local geological and topographic restraints on
the production of housing.
(3) If the council of governments or the department accepts the
proposed revision or modifies its earlier determination, the city or
county shall use that share. If the council of governments or the
department grant a revised allocation pursuant to paragraph (1),
the council of governments or the department shall ensure that the
current total housing need is maintained. If the council of
governments or department indicates that the proposed revision is
inconsistent with the regional housing need, the city or county
shall use the share which was originally determined by the council
of governments or the department.
(4) The determination of the council of governments or the
department, as the case may be, shall be subject to judicial review
pursuant to Section 1094.5 of the Code of Civil Procedure.
(5) The council of governments or the department shall reduce
the share of regional housing needs of a county if all of the
following conditions are met:
(A) One or more cities within the county agree to increase its
share or their shares in an amount which will make up for the
reduction.
(B) The transfer of shares shall only occur between a county
and cities within that county.
(C) The county's share of low- income and very low income
housing shall be reduced only in proportion to the amount by
which the county's share of moderate- and above
moderate- income housing is reduced.
(D) The council of governments or the department, whichever
assigned the county's share, shall have authority over the approval
of the proposed reduction, taking into consideration the criteria of
subdivision (a). -
(6) The housing element shall contain an analysis of the factors
and circumstances, with all supporting data, justifying the
revision. All materials and data used to justify any revision shall
be made available upon request by any interested party within
seven days upon payment of reasonable costs of reproduction
unless the costs are waived due to economic hardship.
(d) (1) Except as provided in paragraph (2), any ordinance,
policy, or standard of a city or county that directly limits, by
number, the building permits that may be issued for residential
95
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
-7— SB 910
construction, or limits for a set period of time the number of
buildable lots that may be developed for residential purposes, shall
not be a justification for a determination or a reduction in the share
of a city or county of the regional housing need.
(2) Paragraph (1) does not apply to any city or county that
imposes a moratorium on residential construction for a specified
period of time in order to preserve and protect the public health and
safety. If a moratorium is in effect, the city or county shall, prior
to a revision pursuant to subdivision (c), adopt findings that
specifically describe the threat to the public health and safety and
the reasons why construction of the number of units specified as
its share of the regional housing need would prevent the mitigation
of that threat.
(e) Any authority to review and revise the share of a city or
county of the regional housing need granted under this section
shall not constitute authority to revise, approve, or disapprove the
manner in which the share of the city or county of the regional
housing need is implemented through its housing program.
(f) A fee may be charged interested parties for any additional
costs caused by the amendments made to subdivision (c) by
Chapter 1684 of the Statutes of 1984 reducing from 45 to seven
days the time within which materials and data shall be made
available to interested parties.
(g) Determinations made by the department, a council of
governments, or a city or county pursuant to this section are
exempt from the California Environmental Quality Act, Division
13 (commencing with Section 21000) of the Public Resources
Code.
SEC. 2. 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
I
SB 910
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
—8—
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,
may award the plaintiff reasonable attorney's fees and costs and
shall levy a penalty not to exceed the following amounts:
(1) One hundred thousand dollars ($100,000) for a city, county,
or city and county with a population less than or equal to 100,000.
(2) Two hundred fifty thousand dollars ($250,000) for a city,
county, or city and county with a population greater than 100,000
and less than or equal to 250,000.
(3) Five hundred thousand dollars ($500,000) for a city,
county, or city and county with a population greater than 250,000
and less than or equal to 500,000.
(4) One million dollars ($1,000,000) for a city, county, or city
and county with a population greater than 500,000 and less than
or equal to 1,000,000.
(5) One million five hundred thousand dollars ($1,500,000) for
a city, county, or city and county with a population greater than
1,000,000.
For the purposes of this section, the population of a county shall
only include the population residing in unincorporated areas. Any
penalties shall accrue to the Housing Supply Account, which is
hereby created in the Housing Rehabilitation Loan Fund
established by Section 50661 of the Health and Safety Code for the
purposes of the Multifamily Housing Program established by
Chapter 6.7 (commencing with Section 50675) of Part 2 of
Division 31 of the Health and Safety Code. Notwithstanding
Section 50661 of the Health and Safety Code, no money in the
Housing Supply Account shall be expended except upon
appropriation by the Legislature in the annual Budget Act or other
legislation.
(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
W
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
-9— SB 910
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.
SEG. 2.
SEC. 3. 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.
i;EGT
SEC. 4. Section 65585.5 is added to the Government Code, to
read:
65585.5. (a) The Controller shall reduce by the percentages
specified in subdivision (b) 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 that meets both of the
following criteria:
(I) For the third or subsequent revision of its housing element,
the city, county, or city and county has not adopted a 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.
(2) The city, county, or city and county, during the previous
housing element cycle, did not adopt a 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.
I-
SB 910
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
—10—
(b) (1) The allocation shall be [educed by 20 percent for a city,
county, or city and county that meets the criteria of subdivision (a)
and 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 that meets the criteria of subdivision (a)
and whose third or subsequent revision of its housing element has
not been found by the department to be in substantial compliance
within one yew of the deadline established by Section 65588.
(3) The allocation shall be reduced by 60 percent for a city,
county, or city and county that meets the criteria of subdivision (a)
and 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.
(c) Any funds withheld from a city, county, or city and county
pursuant to this section shall be held in an escrow account and
disbursed to the city, county, or city and county when the
department determines pursuant to Section 65585 that the city,
county, or city and county is in substantial compliance with the
requirements of this article.
(d) 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.
(e) The department shall report to the Controller by the 20th
day of the month a list of cities, counties, and cities and counties
that, as of the 15th day of that month, meet both of the criteria
described in paragraphs (1) and (2) of subdivision (a). 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.
95
City Opposition Letter to SB 910— Hoasing Element
City Cmmcit Staff Report
June 11, 7001
ATTACHMENT 3
CITY COMMENT LETTER OPPOSING SB 910,
DATED APRIL 23, 2001
SB 910.CC Steff Report 2
April 23, 2001
Senator Joe Dunn
State Capitol, Room 2080
Sacramento, CA 95814
SUBJECT: NOTICE OF OPPOSITION - SB 910 MUNN). HOUSING
ELEMENTS: FINES, PENALTIES, AND LITIGATION
Dear Senator Dunn:
We regret to inform you that the City of Seal Beach OPPOSES your SB 910, as
introduced. In brief, this measure establishes a legal rebuttable presumption of non-
validity for a housing element if the Department of Housing and Community
Development (HCD) has found that the element or amendment does not substantially
comply with state law, requires a court to levy a penalty up to $1,000 per unit of the total
projected housing need of the affected city or county, in addition to mandatory attorney's
fees and costs, and establishes legislative intent to withhold additional state funding, and
to redistribute the withheld funds to those jurisdictions that HCD deems in compliance.
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. In addition, under existing Section
65585(£) of the 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.
C:WYn UMY UN. GISLAI SS 910.CC Com wt ecdmNLW�17 -0I
Ciry of Seal Beach Opposition Letter re:
SB 910 - Housing Elements
April 23, 1001
This measure shifts the legal standard for housing element review from innocent until
proven guilty to guilty until proven innocent, by declaring that a local housing element is
presumed invalid in a court if a local government fails to comply with every whim of the
state reviewer. This change has the effect of elevating the opinion a state plan reviewer
above the opinion of a judge, and causing serious consequences for both local
governments and developers, because 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 become subject to legal
challenge. Furthermore, this bill treats local elected officials as criminals by imposing
$1,000- per -unit penalties, and stating legislative intent for the state to divert additional
local revenues away from local government, when state plan reviewers fail to deem an
element in substantial compliance. This approach is offensive, and ignores the already
substantial powers of a Court to deal with invalid general plans under Section 65755 of
the Government Code.
We completely object to this measure which attempts 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. We care deeply about our community and the many needs
of our constituents. Due to the lack of state -local fiscal reform, even after years of state
surpluses, we struggle to meet the full range of needs for our community with limited
property tax resources, and attempt to provide housing for our citizens with little help
from the state or federal level to meet the affordable housing needs of our citizens.
Therefore, we are offended by this measure and its focus on fines, penalties, threats from
the state over the review of our local housing element by state officials, who may never
have even been to our city, and may care little about the variety or complexity of the
issues that we balance every day.
Addressing this state's many housing needs requires a productive working relationship
between local governments and the state, and a discussion that must involve the full
scope of issues which affect housing production. SB 910 is the wrong approach.
Sincerely,
/ _S/
Patricia E. Campbell
Mayor, City of Seal Beach
cc: Members and Consultant, Senate Housing and Community Development
Committee
Members and Consultant, Senate Transportation Committee
sa 910.CC Comment Letter
City of Seal Beach Opposition Letter re.
SB 910 - Housing Element,
April 23, 2001
Senator Ross Johnson
Senator John Burton
Senator Ray Haynes
Senator Dick Monteith
Senator Tom Torlakson
Assembly Member Tom Harman
Assembly Member Alan Lowenthal
Assembly Member Pat Wiggins
Julie Bornstein, Director, Department of Housing and Community Development
Mike Gotch, Legislative Secretary, Governor's Office
League of California Cities
Sa 910.CC Comment Lena