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HomeMy WebLinkAboutItem IAGENDA REPORT DATE: April 23, 2001 TO: Honorable Mayor and City Council THRU: John B. Bahorski, City Manager FROM: Lee whittmberg, 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: SB 910 requires the courts to impose stiff penalties against local government housing elements found to be non - compliant with State law. Penalties would not exceed $1,000 per unit of the total projected housing need for a jurisdiction, but would include an award for plaintiff attorney's fees and costs. For the City of Seal Beach, the current total projected housing need is 265 units. This bill further provides that any action filed 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 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. SB 910 was amended on March 27 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. The following amounts would apply: • A 20% reduction for a local government whose third or subsequent revision of its housing element has not been found by HCD to be in substantial compliance within 180 days of the current deadline; C:U1y nw:umwtaV.EGISLA'11SB 910.CC SmffRryoM1.dacV.W\14 4) -01 M,fyr� 1 1 Agenda Item Z City Opposition Letter to SB 910— Housing Element City Council Staff Report April 23, 2001 • A 40% reduction for a local government whose third or subsequent revision of its housing element has not been found by HCD to be in substantial compliance within one year of the current deadline; and • A 60% reduction for a local government 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'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. FISCAL IMPACT: Potential loss of General Fund revenues if HCD determines the adopted Housing Element Revision is not in compliance with the provisions of State law. Loss of funds could exceed $265,000 plus additional amounts if gas tax revenues were also to be reduced. The City currently receives approximately $505,000 in gas tax revenues. 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. Whittenberg Director of Development Servi Attachments: (2) Attachment 1: City Comment Letter Opposing SB 910 Attachment 2: SB 910 So 910.CC Staff Report April 23, 2001 Senator Joe Dunn State Capitol, Room 2080 Sacramento, CA 95814 SUBJECT: NOTICE OF OPPOSITION - SB 910 (DUNN). 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 goverment 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(f) 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 goverment 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 goverment 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.Wy DocvmmdU.EGISI nSB 9I0.CC Comment Lett .do W%04 -17-01 City of Seal Beach Opposition Letter re: SB 910 - Housing Elements Apn123, 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 we 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, . y �i+�t�t uC � & Patricia E. Campbell Mayor, City of Seal Beach. cc: Members and Consultant, Senate Housing and Community Development Committee Members and Consultant, Senate Transportation Committee SB 910.CC Comm= [.ever City of Seal Beach Opposition Letter re: SB 910 — Housing Elements 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 :IMIR Karm—. — AMENDED IN SENATE MARCH 27, 2001 SENATE BILL No. 910 Introduced by Senaterg Penn, Berton, Haynes, and AlonteiOl 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. LEGISLATNE COUNSEL'S DIGEST SB 910, m 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 I SB 910 —2— and costs and to levy a penalty mile 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 in 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 tnidenfifted state f6nding from require the Controller to reduce by specified percentages the monthly allocation offunds disbursed under various feel tax laws to any city, county, or city and county Olat have -a whose third or subsequent revision of its housing element is not in substantial compliance with state law and to redistribute the money fe these �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 selfcer ification of a housing element shall be deemed to have been approved by the department unless a court finds thatjurisdiction' 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: 1 SECTION 1. Section 65587 of the Government Code is 2 amended to read: 3 65587. (a) Each city, county, or city and county shall bring its 4 housing element, as required by subdivision (c) of Section. 65302, 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 -3— SB 910 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 fords 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 65584: Any penalties shall accrue to the Housing Rehabilitation Loan Fund established by Section 50661 of the Health and Safety Code. (c) If a court fords 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 60day 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. 98 SB 910 —4— (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. 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 offunds dispersed pursuant to subdivision (d), (e), or (n of Section 1104 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 10 percent jar 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 offunds 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 98 -5— SB 910 1 a court finds that the jurisdiction's housing element does not 2 substantially comply with this article. 3 (d) The department shall report to the Controller by the 20th 4 day of the month a list of cities, counties, and cities and counties 5 whose third or subsequent housing element revisions, as of the 15th 6 day of that month, have not been determined by the department to 7 be in substantial compliance with the requirements of this article. 8 The department shall also report the deadline date for the third or 9 subsequent housing element revision established in Section 65588 10 for each respective junsdiction on that list. 11 12 13 element thet the Pepai�fnem of Housing mid Ga�ky 14 Development has defermined pumuan+ to Seetion 65585 of the 15 Gave�eftt Code to be in sebstftmial eamplimee with the 18 19 21 to be in eamplimee with state low. For the p�peses of this seetten 22 23 6 - - — ---- Go de shall deemed — - --- 24 0 98