BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Tom Torlakson, Chair
BILL NO: AB 2292 HEARING: 7/3/02
AUTHOR: Dutra FISCAL: No
VERSION: 6/13/02 CONSULTANT: Detwiler
RESIDENTIAL DENSITIES
Background and Existing Law
The Planning and Zoning Law requires every county and city
to adopt a general plan with seven specified elements,
including a housing element. A housing element must
contain an assessment of housing needs, including an
inventory of land suitable for residential development,
including vacant and redevelopable sites and an analysis of
the sites' zoning, public facilities, and public services.
A housing element must also contain a five-year action
program, including the identification of adequate sites to
encourage the development of housing for all income levels.
Local officials must revise their housing elements every
five years.
Major land use decisions --- zoning, subdivisions, public
works, use permits --- must be consistent with local
general plans. The courts say that a land use decision is
consistent with a general plan if it furthers the plan's
objectives and policies and does not obstruct their
attainment.
State law requires county supervisors and city councils to
plan and zone enough vacant land for residential use, in
relation to the growth projections in their general plans.
Local officials must refrain from imposing subdivision
standards that make affordable housing infeasible. If a
court finds that a county or city violated these statutes,
local officials have 60 days to comply.
Some observers worry that when local officials react to
"NIMBY" pressure by reducing the density of subdivisions
and apartment projects, they make it hard to reach a
general plan's goal for producing enough housing units
during that five-year period. Downzonings and rezonings
are among the reasons that counties and cities don't reach
their housing goals.
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Proposed Law
Assembly Bill 2292 requires every city and county to ensure
that its inventory or programs for adequate housing sites
required as part of its housing element can accommodate its
share of regional housing needs during that planning
period.
AB 2292 prohibits a city and a county from reducing,
requiring, or permitting the reduction of a parcel's
residential density to a lower residential density that is
below the density used to determine compliance with the
housing element, unless the city or county makes written
findings supported by substantial evidence that:
The reduction is consistent with the general
plan, including the housing element.
The reduction substantially complies with other
statutory provisions, including residential zoning
standards, density bonus requirements, the housing
element's inventory of sites, and the housing
element's program for identifying sites.
The remaining sites identified in the housing
element are adequate to accommodate the regional
share of housing needs.
If the reduction of a parcel's residential density would
result in an inadequate number of remaining sites, the bill
allows the city or county to reduce that parcel's density
if the city or county identifies sufficient additional,
adequate and available sites with equal or greater
residential density, so there is not net loss of
residential unit capacity.
If a court finds that the action of a city or county
violates these requirements, the bill requires the court to
award the plaintiff reasonable attorney's fees and costs,
except in extraordinary circumstances where the court finds
that it would not further the statute's purposes.
AB 2292 declares that its requirements are in addition to
other laws that limit the reduction of residential
densities.
Comments
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1. No net loss . Elected officials, planners, property
owners, builders, and housing advocates spend plenty of
hours and political capital writing general plans. Once
the housing element is in place, they must make the other
elements' policies and programs mesh. But when city
councils and county supervisors give in to angry neighbors
and cut residential densities, the plans just fall apart.
Cities and counties can't produce enough housing if they
step back from their planned densities. Adapting the
concept of no-net-loss to residential densities, AB 2292
makes local officials who want to cut densities boost them
somewhere else in the community.
2. Prescription for litigation . Although comprehensive
planning is a rational process, land use decisions are
inherently political. Rational decisions about housing
elements' five-year goals clash in AB 2292 with the real
politics of approving development projects. The bill's
language anticipates more lawsuits, requiring written
findings and substantial evidence. The bill invites
litigation by promising attorney's fees to winning
plaintiffs. The Committee may wish to consider whether the
goal of AB 2292 is producing enough affordable houses and
apartments, or producing lawsuits over irreconcilable
differences. Are more lawsuits the best way to battle
NIMBYism?
3. Paying the piper . Under the "American rule," each
party in a lawsuit must pay its own attorney's fees unless
they have a different agreement or they meet a statutory or
judicial exception. Under the "private attorney general
doctrine," a court may award attorney's fees to a
prevailing private party in a lawsuit that enforces an
important public right. Under AB 369 (Dutra, 2000), a
court must award attorney's fees and costs to a prevailing
plaintiff if the court found that local officials
disapproved an affordable housing development or made the
development infeasible. While last year's Dutra bill set
the precedent for ordering courts to award attorney's fees
in affordable housing cases, the Committee may wish to
consider whether the Legislature should extend the practice
with AB 2292. Will mandatory attorney's fees become
commonplace with other land use lawsuits?
4. Watch your language . For more than 30 years, the
AB 2292 -- 6/13/02 -- Page 4
Planning and Zoning Law has required major land use
decisions to be consistent with local general plans. But
the statute still doesn't define consistency. Two
appellate court decisions and an Attorney General's opinion
have embraced a definition from the advisory General Plan
Guidelines issued by the Governor's Office of Planning and
Research. That definition recognizes that a land use
decision is consistent with a general plan if it furthers
the plan's objectives and policies and does not obstruct
their attainment. Rezoning residential property from
medium-density to low-density is exactly the kind of
decision that would obstruct the attainment of a plan's
objectives and policies. Instead of fomenting litigation
with elaborate findings, the Committee may wish to consider
codifying the consistency definition. Clear statutory
direction to local officials may influence their decisions.
Assembly Actions
Assembly Judiciary Committee: 12-0
Assembly Local Government Committee: 9-1
Assembly Floor: 57-13
Support and Opposition (6/27/)
Support : California Association of Realtors, California
Rural Legal Assistance Foundation, Western Center on Law
and Poverty, A Community of Friends, A.F. Evans Company,
Advanced Development and Investment, Affordable Housing
Associates, Alliance for Retired Americans, Allied Housing,
Apartment Association of California-Southern Cities,
Barbara Sanders Associates, Beacon Housing, Berkeley
Property Owners Association, Bonita House, Bridge Housing
Corporation, Bruce Reed Goodmiller Law Firm, California
Legislative Council for Older Americans, California State
Building and Construction Trades Council, Cabrillo Economic
Development Corp, California Affordable Housing Law
Project, California Association of Homes and Services for
the Aging, California Conference of Carpenters, California
Federation of Labor AFL-CIO, California HIV
Advocacy-Coalition Southern California Region, California
Housing Council, California State Association of Electrical
Workers, California State Pipe Trades Council, Center for
Community Advocacy, Century Housing, Chicano Consortium,
AB 2292 -- 6/13/02 -- Page 5
Children Now, CHISPA, Citizens for Responsible Growth,
Civic Center Barrio Housing Corporation, Coachella Valley
Housing Coalition, Coalition for Economic Survival,
Community Housing Improvement Program, Chico Community
Interfaith Services, Carlsbad Community Resource
Associates, Congress of California Seniors, Consumers in
Action for Personal Assistance, Council of Churches of
Santa Clara County, Council of Community Housing
Organizations, Creative Support Alternative, Davis and
Company, East Bay Asian Local Development Corporation, East
Bay Community Law Center, Enterprise Foundation, Esperanza
Community Housing Corporation, Fair Housing Council of the
San Fernando Valley, Fair Housing Council of San Diego,
Fair Housing Foundation, Faith Housing Corporation, First
Community Housing, Fremont Fair Housing, Friends Committee
on Legislation, Gray Panthers of California, Great Northern
Corporation, Hermandad Mexicana Nacional, Hillview Mental
Health Center, Hollywood Community Housing Corporation,
Homes for Life Foundation, Homeward Bound of Marin, Housing
Policy Network, Housing Rights Committee of San Francisco,
Humana Economic Development Group, Inglewood Neighborhood
Housing Services, Jamboree Housing Corporation, Kennedy
Commission, Los Angeles Coalition to End Hunger and
Homelessness, Los Angeles County Area Agency on Aging
Advisory Council, La Raza Centro Legal, Latin American
Civic Association, League of Women Voters-Richmond Area,
Los Angeles Housing Law Project, Los Angeles Housing
Partnership, Low Income Housing Fund, Lutheran Social
Services-Southern California, Many Mansions, Marin Housing
Council, Mercy Housing Corporation, Minority Apartment
Owners Association, Nancy Lewis Associates, Naphtali Knox &
Associates, Neighborhood House Association, Neighborhood
Unitarian Universalist Church, New Economics for Women, New
Faze Development, O.N.E. Company, Office of Social
Concerns-Diocese of San Bernardino, Older Women's League of
California, Orange County Community Housing Corporation,
Pacific Housing Development, People's Self-Help Housing,
Planning for Elders in the Central City, Protection and
Advocacy Inc., Ralph Me Chur Architects, Rural Communities
Housing Development Corporation, Rural Community Assistance
Corporation, Sacramento City Councilmember David Jones,
Sacramento Housing Alliance, Sacramento Loaves and Fishes,
Sacramento Mutual Housing, Sacramento Neighborhood Housing
Services, San Diego County Apartment Association, Santa
Barbara Rental Property Association, Santa Cruz Community
Counseling, Second Somoan Congregational Church, Self Help
AB 2292 -- 6/13/02 -- Page 6
Enterprises, Senior Action Network, Shelter Network,
Shelter Partnership Inc., Skid Row Housing Trust, Sober
Living Network, Society of St. Vincent de Paul, South
County Housing, Southern California Association of
Non-Profit Housing, Squier Properties, Sun Country
Builders, Tenderloin Housing Clinic, The Agora Group, The
Greenlining Institute, The WIN Project, Thomas Saffran
Associates, Union Gospel Outreach, Vallejo Neighborhood
Housing Services, Venice Community Housing Corporation,
Vernon Property Association, Vietnam Veterans of
California-Sacramento Branch, West Hollywood Community
Housing Corporation, Western Center on Law and Poverty,
Western States Council of Sheet Metal Workers, Westside
Fair Housing, Westside Regional Center.
Opposition : American Planning Association-California
Chapter, California State Association of Counties, League
of California Cities; Cities of Benicia, Colma, Costa Mesa,
Dana Point, El Cajon, Emeryville, Foster City, Fullerton,
Galt, Garden Grove, Hayward, Irwindale, Laguna Hills, Lake
Forest, Lakewood, La Palma, La Quinta, Merced, Millbrae,
Monterey, Moreno Valley, Oakland, San Clemente, San Dimas,
San Marcos, Saratoga, Riverside, Signal Hill, Thousand
Oaks, Yucca Valley; Norco Horsemen's Association, San Diego
County, Santa Clara County Cities Association, San Mateo
County Council of Cities, South Bay Cities Council of
Governments.