Legal Risks of SB375 GHG Targets 

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SB375   (greenhouse gas emission targets)   pdf Page 29

SEC. 11. 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.
  • (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.
  • (d)
    • (1) If a court finds that a city, county, or city and county failed to
      complete the rezoning
      required by subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583, as that deadline may be modified by the extension provided for in subdivision (f) of that section, the court shall issue an order or judgment, after considering the equities of the circumstances presented by all parties, compelling the local government to complete the rezoning within 60 days or the earliest time consistent with public hearing notice requirements in existence at the time the action was filed. The court shall retain jurisdiction to ensure that its order or judgment is carried out.

      If the court determines that its order or judgment is not carried out, the court shall issue further orders to ensure that the purposes and policies of this article are fulfilled, including ordering, after considering the equities of the circumstances presented by all parties, that any rezoning required by subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583 be completed within 60 days or the earliest time consistent with public hearing notice requirements in existence at the time the action was filed and may impose sanctions on the city, county, or city and county.
       
    • (2) Any interested person may bring an action to compel compliance with the deadlines and requirements of paragraphs (1), (2), and (3) of subdivision (c) of Section 65583. The action shall be brought pursuant to Section 1085 of the Code of Civil Procedure. An action may be brought pursuant to the notice and accrual provisions of subdivision (d) of Section 65009.
       In any such action, the city, county, or city and county shall bear the burden of proof.

 

 

   

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SEC. 7. Section 65583 of the Government Code is amended to read:

65583. The
housing element shall consist of an identification and analysis
of existing and projected housing needs and a statement of goals, policies,
quantified objectives, financial resources, and scheduled programs for the
preservation, improvement, and development of housing.

The
housing element shall identify adequate sites for housing, including rental housing, factory-built housing, mobilehomes, and emergency shelters, and shall make adequate provision for the existing and projected needs of all economic segments of the community.

The element shall contain all of the following:


  • (a) An assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs. The assessment and inventory shall include all of the following:
    • (1) An analysis of population and employment trends and documentation of projections and a quantification of the locality’s existing and projected housing needs for all income levels, including extremely low income households, as defined in subdivision (b) of Section 50105 and Section 50106 of the Health and Safety Code. These existing and projected needs
      shall include the locality’s share of the regional housing need in accordance with Section 65584. Local agencies shall calculate the subset of very low income households allotted under Section 65584 that qualify as extremely low income households. The local agency may either use available census
      data to calculate the percentage of very low income households that qualify as extremely low income households or presume that 50 percent of the very low income households qualify as extremely low income households. The number of extremely low income households and very low income households shall equal the jurisdiction’s allocation of very low income
      households pursuant to Section 65584.
    • (2) An analysis and documentation of household characteristics, including level of payment compared to ability to pay, housing characteristics, including overcrowding, and housing stock condition.
    • (3) An inventory of land suitable for residential development, including vacant sites and sites having potential for redevelopment, and an analysis of the relationship of zoning and public facilities and services to these sites.
    • (4)
      •  (A) The identification of a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit. The identified zone or zones shall include sufficient
        capacity to accommodate the need for emergency shelter identified in paragraph (7), except that each local government shall identify a zone or zones that can accommodate at least one year-round emergency shelter. If the local government cannot identify a zone or zones with sufficient capacity, the local government shall include a program to amend its zoning ordinance
        to meet the requirements of this paragraph within one year of the adoption of the housing element. The local government may identify additional zones where emergency shelters are permitted with a conditional use permit. The local government shall also demonstrate that existing or proposed permit processing, development, and management standards are objective and
        encourage and facilitate the development of, or conversion to, emergency shelters. Emergency shelters may only be subject to those development and
        management standards that apply to residential or commercial development within the same zone except that a local government may apply written,
        objective standards that include all of the following:
        • (i) The maximum number of beds or persons permitted to be served nightly by the facility.
        • (ii) Off-street parking based upon demonstrated need, provided that the standards do not require more parking for emergency shelters than for other
          residential or commercial uses within the same zone.
        • (iii) The size and location of exterior and interior onsite waiting and client intake areas.
        • (iv) The provision of onsite management.
        • (v) The proximity to other emergency shelters, provided that emergency shelters are not required to be more than 300 feet apart.
        • (vi) The length of stay.
        • (vii) Lighting.
        • (viii) Security during hours that the emergency shelter is in operation.
      • (B) The permit processing, development, and management standards applied under this paragraph shall not be deemed to be discretionary acts
        within the meaning of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
      • (C) A local government that can demonstrate to the satisfaction of the department the existence of one or more emergency shelters either within its jurisdiction or pursuant to a multijurisdictional agreement that can
        accommodate that jurisdiction’s need for emergency shelter identified in paragraph (7) may comply with the zoning requirements of subparagraph (A) by identifying a zone or zones where new emergency shelters are allowed with a conditional use permit.
      • (D) A local government with an existing ordinance or ordinances that
        comply with this paragraph shall not be required to take additional action to identify zones for emergency shelters. The housing element must only describe how existing ordinances, policies, and standards are consistent with the requirements of this paragraph.
    • (5) An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures. The analysis shall
      also demonstrate local efforts to remove governmental constraints that hinder the locality from meeting its share of the regional housing need in accordance with Section 65584 and from meeting the need for housing for persons with disabilities, supportive housing, transitional housing, and emergency shelters identified pursuant to paragraph (7). Transitional housing and supportive housing shall be considered a residential use of property, and shall be subject only to those restrictions that apply to other residential dwellings of the same type in the same zone.
    • (6) An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the availability of financing, the price of land, and the cost of construction.
    • (7) An analysis of any special housing needs, such as those of the elderly,
      persons with disabilities, large families, farmworkers, families with female
      heads of households, and families and persons in need of emergency shelter.
      The need for emergency shelter shall be assessed based on annual and
      seasonal need. The need for emergency shelter may be reduced by the
      number of supportive housing units that are identified in an adopted 10-year
      plan to end chronic homelessness and that are either vacant or for which
      funding has been identified to allow construction during the planning period.
    • (8) An analysis of opportunities for energy conservation with respect to
      residential development.
    • (9) An analysis of existing assisted housing developments that are eligible
      to change from low-income housing uses during the next 10 years due to
      termination of subsidy contracts, mortgage prepayment, or expiration of
      restrictions on use. “Assisted housing developments,” for the purpose of
      this section, shall mean multifamily rental housing that receives
      governmental assistance under federal programs listed in subdivision (a) of
      Section 65863.10, state and local multifamily revenue bond programs, local
      redevelopment programs, the federal Community Development Block Grant
      Program, or local in-lieu fees. “Assisted housing developments” shall also
      include multifamily rental units that were developed pursuant to a local
      inclusionary housing program or used to qualify for a density bonus pursuant to Section 65916.
      • (A) The analysis shall include a listing of each development by project name and address, the type of governmental assistance received, the earliest possible date of change from low-income use and the total number of elderly and nonelderly units that could be lost from the locality’s low-income housing stock in each year during the 10-year period. For purposes of state and federally funded projects, the analysis required by this subparagraph
        need only contain information available on a statewide basis.
      • (B) The analysis shall estimate the total cost of producing new rental housing that is comparable in size and rent levels, to replace the units that could change from low-income use, and an estimated cost of preserving the assisted housing developments. This cost analysis for replacement housing may be done aggregately for each five-year period and does not have to contain a project-by-project cost estimate.
      • (C) The analysis shall identify public and private nonprofit corporations known to the local government which have legal and managerial capacity to acquire and manage these housing developments.
      • (D) The analysis shall identify and consider the use of all federal, state, and local financing and subsidy programs which can be used to preserve, for lower income households, the assisted housing developments, identified in this paragraph, including, but not limited to, federal Community Development Block Grant Program funds, tax increment funds received by a redevelopment agency of the community, and administrative fees received by a housing authority operating within the community. In considering the use of these financing and subsidy programs, the analysis shall identify the
        amounts of funds under each available program which have not been legally obligated for other purposes and which could be available for use in preserving assisted housing developments.
  • (b)
    • (1) A statement of the community’s goals, quantified objectives, and
      policies relative to the maintenance, preservation, improvement, and
      development of housing.
    • (2) It is recognized that the total housing needs identified pursuant to
      subdivision (a) may exceed available resources and the community’s ability
      to satisfy this need within the content of the general plan requirements
      outlined in Article 5 (commencing with Section 65300). Under these
      circumstances, the quantified objectives need not be identical to the total
      housing needs. The quantified objectives shall establish the maximum
      number of housing units by income category, including extremely low
      income, that can be constructed, rehabilitated, and conserved over a five-year time period.
  • (c) A program which sets forth a schedule of actions during the planning
    period, each with a timeline for implementation, which may recognize that
    certain programs are ongoing, such that there will be beneficial impacts of
    the programs within the planning period, that the local government is
    undertaking or intends to undertake to implement the policies and achieve
    the goals and objectives of the
    housing element through the administration
    of land use and development controls, the provision of regulatory concessions
    and incentives, and the utilization of appropriate federal and state financing
    and subsidy programs when available and the utilization of moneys in a
    low- and moderate-income housing fund of an agency if the locality has
    established a
    redevelopment project area pursuant to the Community Redevelopment Law (Division 24 (commencing with Section 33000) of the
    Health and Safety Code). In order to make adequate provision for the housing
    needs of all economic segments of the community, the program shall do all
    of the following:
    • (1) Identify actions that will be taken to make sites available during the
      planning period of the
      general plan with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural
      employees, supportive housing, single-room occupancy units, emergency
      shelters, and transitional housing.
      • (A) Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, rezoning of those sites, including adoption of minimum density and development standards, for jurisdictions with an eight-year housing element planning period pursuant to Section 65588, shall be completed no later than three years after either the date the housing element is adopted pursuant to subdivision (f) of Section 65585 or the date that is 90 days after receipt of comments from the department pursuant to subdivision (b) of Section 65585, whichever is earlier, unless the deadline is extended pursuant to subdivision (f).
        Notwithstanding the foregoing,
        for a local government that fails to adopt a housing element within 120 days of the statutory deadline in Section 65588 for adoption of the housing element, rezoning of those sites, including adoption of minimum density and development standards, shall be completed no later than three years and 120 days from the statutory deadline in Section 65588 for adoption of the housing element.
      • (B) Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, the program shall identify sites that can be developed for housing within the planning period pursuant to subdivision (h) of Section 65583.2. The identification of sites
        shall include all components specified in subdivision (b) of Section 65583.2.
      • (C) Where the inventory of sites pursuant to paragraph (3) of subdivision  (a) does not identify adequate sites to accommodate the need for farmworker housing, the program shall provide for sufficient sites to meet the need with zoning that permits farmworker housing use by right, including density and development standards that could accommodate and facilitate the feasibility of the development of farmworker housing for low- and very low income households.
    • (2) Assist in the development of adequate housing to meet the needs of
      extremely low, very low, low-, and moderate-income households.
    • (3) Address and, where appropriate and legally possible, remove
      governmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for
      occupancy by, or with supportive services for, persons with disabilities.
    • (4) Conserve and improve the condition of the existing affordable housing
      stock, which may include addressing ways to mitigate the loss of dwelling
      units demolished by public or private action.
    • (5) Promote housing opportunities for all persons regardless of race,
      religion, sex, marital status, ancestry, national origin, color, familial status,
      or disability.
    • (6) Preserve for lower income households the assisted housing
      developments identified pursuant to paragraph (9) of subdivision (a). The
      program for preservation of the assisted housing developments shall utilize,
      to the extent necessary, all available federal, state, and local financing and
      subsidy programs identified in paragraph (9) of subdivision (a), except
      where a community has other urgent needs for which alternative funding
      sources are not available. The program may include strategies that involve
      local regulation and technical assistance.
    • (7) The program shall include an identification of the agencies and
      officials responsible for the implementation of the various actions and the
      means by which consistency will be achieved with other general plan
      elements and community goals. The local government shall make a diligent
      effort to achieve public participation of all economic segments of the
      community in the development of the housing element, and the program
      shall describe this effort.
  • (d)
    • (1) A local government may satisfy all or part of its requirement to
      identify a zone or zones suitable for the development of emergency shelters
      pursuant to paragraph (4) of subdivision (a) by adopting and implementing
      a multijurisdictional agreement, with a maximum of two other adjacent
      communities, that requires the participating jurisdictions to develop at least
      one year-round emergency shelter within two years of the beginning of the
      planning period.
    • (2) The agreement shall allocate a portion of the new shelter capacity to
      each jurisdiction as credit towards its emergency shelter need, and each
      jurisdiction shall describe how the capacity was allocated as part of its
      housing element.
    • (3) Each member jurisdiction of a multijurisdictional agreement shall
      describe in its housing element all of the following:
      • (A) How the joint facility will meet the jurisdiction’s emergency shelter need.
      • (B) The jurisdiction’s contribution to the facility for both the development and ongoing operation and management of the facility.
      • (C) The amount and source of the funding that the jurisdiction contributes to the facility.
    • (4) The aggregate capacity claimed by the participating jurisdictions in
      their housing elements shall not exceed the actual capacity of the shelter.
  • (e) Except as otherwise provided in this article, amendments to this article
    that alter the required content of a housing element shall apply to both of
    the following:
    • (1) A housing element or housing element amendment prepared pursuant
      to subdivision (e) of Section 65588 or Section 65584.02, when a city, county, or city and county submits a draft to the department for review pursuant to Section 65585 more than 90 days after the effective date of the amendment to this section.
    • (2) Any housing element or housing element amendment prepared
      pursuant to subdivision (e) of Section 65588 or Section 65584.02, when the
      city, county, or city and county fails to submit the first draft to the department before the due date specified in Section 65588 or 65584.02.
  • (f) The deadline for completing required rezoning pursuant to
    subparagraph (A) of paragraph (1) of subdivision (c) shall be extended by
    one year if the local government has completed the rezoning at densities
    sufficient to accommodate at least 75 percent of the sites for low- and very
    low income households and if the legislative body at the conclusion of a
    public hearing determines, based upon substantial evidence, that any of the
    following circumstances exist:
    • (1) The local government has been unable to complete the rezoning
      because of the action or inaction beyond the control of the local government
      of any other state federal or local agency.
    • (2) The local government is unable to complete the rezoning because of
      infrastructure deficiencies due to fiscal or regulatory constraints.
    • (3) The local government must undertake a major revision to its general
      plan in order to accommodate the housing related policies of a sustainable
      communities strategy or an alternative planning strategy adopted pursuant
      to Section 65080.
      The resolution and the findings shall be transmitted to the department
      together with a detailed budget and schedule for preparation and adoption
      of the required rezonings, including plans for citizen participation and
      expected interim action. The schedule shall provide for adoption of the
      required rezoning within one year of the adoption of the resolution.
  • (g)
    • (1) If a local government fails to complete the rezoning by the
      deadline provided in subparagraph (A) of paragraph (1) of subdivision (c),
      as it may be extended pursuant to subdivision (f), except as provided in
      paragraph (2), a local government may not disapprove a housing
      development project, nor require a conditional use permit, planned unit
      development permit, or other locally imposed discretionary permit, or impose a condition that would render the project infeasible, if the housing
      development project (A) is proposed to be located on a site required to be
      rezoned pursuant to the program action required by that subparagraph; and
      (B) complies with applicable, objective general plan and zoning standards
      and criteria, including design review standards, described in the program
      action required by that subparagraph. Any subdivision of sites shall be
      subject to the Subdivision Map Act. Design review shall not constitute a
      “project” for purposes of Division 13 (commencing with Section 21000) of
      the Public Resources Code.
    • (2) A local government may disapprove a housing development described
      in paragraph (1) if it makes written findings supported by substantial
      evidence on the record that both of the following conditions exist:
      • (A) The housing development project would have a specific, adverse
        impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density.
        As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.
        (B) There is no feasible method to satisfactorily mitigate or avoid the
        adverse impact identified pursuant to paragraph (1), other than the
        disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.
    • (3) The applicant or any interested person may bring an action to
      enforce this subdivision. If a court finds that the local agency disapproved
      a project or conditioned its approval in violation of this subdivision, the
      court shall issue an order or judgment compelling compliance
      within 60
      days. The court shall retain jurisdiction to ensure that its order or
      judgment is carried out. If the court determines that its order or judgment
      has not been carried out within 60 days, the court may issue further orders
      to ensure that the purposes and policies of this subdivision are fulfilled. In
      any such action, the city, county, or city and county shall bear the burden
      of proof.
    • (4)For purposes of this subdivision, “housing development project”
      means a project to construct residential units for which the project developer
      provides sufficient legal commitments to the appropriate local agency to
      ensure the continued availability and use of at least 49 percent of the housing
      units for very low, low-, and moderate-income households with an affordable
      housing cost or affordable rent, as defined in Section 50052.5 or 50053 of
      the Health and Safety Code, respectively, for the period required by the
      applicable financing.

  • (h) An action to enforce the program actions of the housing element shall be brought pursuant to Section 1085 of the Code of Civil Procedure.

     

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