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Housing Element Bill Stakes Grow Higher

Jul 2, 2010

A bill that would permit a lawsuit challenging a housing element to be filed at almost any time advanced through a state Senate committee earlier this week and is headed to the Senate floor.

Assembly Bill 602 passed the Senate Transportation and Housing Committee on a party-line vote of 6-3 vote, with Democrats in favor and Republicans opposed.

The partisan vote may have surprised some people, but it should not have. The politics of AB 602 are linked to crusading lawyers, state-directed planning of high-density housing and climate change mandates. No Republican wants to be associated with those things. But it's also true that the emergence of AB 602 during the last two weeks has created some odd alliances. The California Association of Realtors, the Silicon Valley Leadership Group and the Sierra Club support the measure; the California Building Industry Association, the California Chamber of Commerce and local government organizations oppose it. The politics are not simple.

Bill author Mike Feuer (D-Los Angeles) told the Senate committee the legislation would "return affordable housing law in California to what it was for the last 25 years."

As I reported last week, Feuer and affordable housing advocates argue that an erroneous 2008 Court of Appeal decision changed the statute of limitations for lawsuits over a housing element from, essentially, anytime to 90 days after the element is adopted. Housing elements are intended to contain the land inventories and policies needed for a city or county to provide its fair share of new units for households of all income levels. The Department of Housing and Community Development reviews local housing elements, but there are few penalties for not having a housing element that HCD certifies as being in compliance.

The open-ended statute of limitations is necessary because not until a developer proposes an actual project which may occur months or years after housing element adoption can people determine the precise impacts of housing element land inventories and policies, explained Julie Snyder, policy director for the organization Housing California. 

Maybe more importantly, said Snyder, is the threat of litigation that affordable housing advocates use to get local government officials to the negotiating table. That's a far more common approach than actual litigation, she said. Snyder said fewer than 20 housing element lawsuits have been filed during the past 25 years.

But League of California Cities lobbyist Bill Higgins complained to the Senate committee that the bill does not distinguish between jurisdictions with HCD-certified housing elements, and those without. Under AB 602, a city could have adopted a certified housing element seven years earlier and still get sued over the adequacy of the element by a developer demanding a greater density bonus or waiver of development standards.

Building Industry Association lobbyist Allison Barnett pointed out that a housing element lawsuit may result in a moratorium on all housing construction, which does nothing to improve the housing stock and punishes innocent parties.

Still, committee Chairman Alan Lowenthal (D-Long Beach) made clear his support for the bill. "I've always felt we needed effective judicial enforcement of the law," he said of the housing element statute. "Access (to the courts) must be restored."

Negotiations among housing advocates, builders and local government representatives are ongoing, but I find it hard to believe everyone will reach agreement. The differences are too fundamental and, frankly, I think everyone has a fairly strong argument. Planners have a deep interest in this one because they are the ones who actually prepare and implement housing elements and because of the SB 375 aspect.

As you probably know, SB 375 is the 2008 legislation that requires metropolitan planning organizations to prepare sustainable communities strategies (SCSs) which include regional land use plans, with the intent of reducing regional greenhouse gas emissions. However, SB 375 does not require city and county general plans to comply with SCSs. Thus, the housing element is seen as an essential tool (a stick, really) to ensure local governments actually implement SCS policies.

Here's how a Senate Transportation and Housing Committee analysis of AB 602 puts it: "[H]ousing element law is currently the only tool to get cities and counties to increase affordable housing densities needed to achieve the SB 375 regional greenhouse gas emission reduction targets. Without an effective way to enforce housing element law, the only tool to effectively ensure implementation of SB 375 at the local level is lost."

Paul Shigley

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