SB 592 Housing Accountability Act

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SOURCE Hydee Feldstein hydeefeldstein@yahoo.com
Paragraph (d) requires the approval of any “housing development project” for “very low, low-, or moderate-income households or any emergency shelter” unless the project fails on narrowly defined grounds related to public health and safety no matter how inconsistent the project may be with local zoning. 
Similarly, paragraph (i) restricts conditions and lower density “that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households.”

Other than (d) and (i), however, the rest of SB 592 has nothing to do with affordable housing or shelters and it accomplishes the same parcel zoning and relief from density as SB 50 in an even more underhanded manner.

Market Rate Housing – Density, Sneaky Gutting of All Other Zoning for which a Variance or a Conditional Use May be Authorized by a Zoning Administrator or a Planning Commission

Section 65589.5 (j), upends all zoning and conditions for ALL proposed “housing development projects” with very limited exceptions.  Whether by error or advertance, paragraph (j) PROHIBITS a local authority from disapproving any “housing development project” on the grounds of its density is not allowed UNLESS the city or county (within 30 days) makes specific written findings based on that the preponderance of the evidence in the record (the record generally consisting solely of the application as deemed completed) that ALL the items listed below are true.

  1. The density proposed is inconsistent with MANDATORY provisions of the general plan and parcel zoning that cannot be varied by application, zoning administrators, planning commissioners or other authorities because of brand new language in SB 592 (never before seen) (SB 592, new Section 65589.5 (j)(1)(B). That new language is: “a general plan, zoning, or subdivision standard or criterion is not ‘applicable”’if . . . the project could be approved without the standard or criterion being met”;

  2.  “the housing development project” is found to have “a specific, adverse impact upon the public health or safety” (which has a definition that is just about impossible to meet); and

  3. There is “no feasible method to satisfactorily mitigate or avoid the adverse impact” except disapproval or lower density for this project.

Of course, in many cities and counties there are few mandatory provisions of the general plan or zoning because an applicant can apply for a variance or a conditional use permit and often and especially with community support the application will be granted.  If a project “could be approved without the standard or criterion being met,” then SB 592’s section 65589.5(j)(i)(B) renders the restrictions inapplicable, automatically requiring the approval (including all “nonresidential” uses) of the housing development project.  So:

  • First, this could put zoning administrators and planning commissions out of work. Despite the lead in to (j) that it is applicable only “When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards,”, the new sneaky carveout in (j)(1)(B) makes just about all zoning not applicable;

  • Second, it does not permit consideration of

    • (a) the health or safety of the occupants (eg fire exits, overcrowding, insufficient sanitation or cooking facilities, etc) or

    • (b) the cumulative effect of housing development projects in a neighborhood on public health or safety (eg evacuation routes, city services requirements for police, fire, paramedics, impact on trash collection, load on infrastructure and utilities, etc).

  • Third, it begs the question since most adverse impacts can be mitigated given enough money and so the question is who pays and while SB 592 does not say so explicitly, the implication seems to be that the local authority would do so. This is an unfunded mandate for which the state would have to pay for services and infrastructure.

Elimination of Use and Density Restrictions In SB 592

SB 592, like SB 330, defines “housing development project” to include “mixed use developments consisting of residential and nonresidential uses” and “transitional housing or supportive housing,” all without any reference to underlying zoning or use restrictions.  SB 592 then expands the definition of “housing development project” to add two new elements to the mix that no other bill has addressed and includes:

  • “a single unit”; and

  • “the addition of one or more bedrooms to an existing residential unit”.

SB 592 also adds a new definition in 65589.5 (h)(6) for “Conditions that have the same effect or impact on the ability of the housing development project to provide housing” shall include, but are not limited to, each of the following:

  • (A) Reduction in the number of bedrooms or other normal residential features, such as a living room or kitchen.

  • (B) The substantial impairment of the housing development project’s economic viability.

SB 592’s examples of impermissible conditions that “lower density” mean that a project must be approved no matter how many bedrooms it creates in any zoning and no matter how large a single-family home is built.  Paragraph (j) coupled with the revised definition of “housing development project” validates the co-housing, communal living, corporate housing, extended stay and private clubs cropping up in various residential neighborhoods where the zoning otherwise would prohibit such arrangements.

These are not residential uses consistent with the neighborhood zoning but rather businesses that chop up the interior space to maximize beds and provide shared kitchen, bath and common living areas, renting out each bed in a shared space, often filling empty beds on a short-term basis with business travelers and tourists.  SB 592 makes it impossible for a city or county to regulate these arrangements no matter how much they may disrupt current zoning, require additional services, burden infrastructure or disrupt neighborhoods.

At the opposite end of the spectrum, by including “a single unit,” the provisions of SB 592, like those of SB 50, again permit McMansions and luxury compounds, albeit in a more subtle (or some might say sneaky) manner.  By permitting the “flex density” on a state-wide basis on every parcel and making all zoning provisions that can be varied on application and public hearing not “applicable,” SB 592 requires the approval of a McMansion, a condo or rental apartment building with a hotel and a restaurant or any number of commercial, retail, or other nonresidential uses anywhere in California even if within a single family residential zone.

SB 592 also (a) “deems” a project to be compliant (no matter how wildly noncompliant it is) unless a city meets its burdens of responding in writing, specifically with reasons not just under the city’s own laws but only under the subset of the city’s laws that SB 592’s language allows to be applicable.  That is an intolerable burden to place on the ministerial staff that approves by-right-projects and creates a significant unfunded mandate.  To add insult to injury, SB 592 also makes the city liable for damages to the developer, to anyone eligible to apply for residency in the proposed project and to housing organizations but does not give adjacent owners or neighbors the right to sue the developer for projects that are noncompliant.

So, all of the following is gone under SB 592:

  • *Residential zoning since any “non-residential” use is permitted up to one-third of the space of a project, including the running of a hotel, extended stay, corporate, boarding or rooming house, dorm or other business renting out a bed or other “residential” space;

  • *Low density zoning of any kind particularly single family or 2 family zoned residences;

  • *Architectural, design, historic and aesthetic standards – all areas now are open to Soviet style grey cinderblock construction or Robert Moses style overcrowded projects;

  • *All “objective” zoning criteria if a project “could be approved” on a variance or conditional use or any other discretionary request.

Wiener’s land-use legislation has never been a debate or a conversation about policy or about affordability or about homelessness. He ducks out of town halls or only takes friendly softball questions.  He does not take serious questions or legitimate debate about the substance of his industry-drafted bills.

But aside from the substance, the tactics, the tricks and the sneakiness of the text in SB 592 (as well as SB 330, AB 1487 and several other industry drafted bills this legislative season) are usually incomprehensible to the average legislator and the average resident.

After much ado, our Legislature passed a comprehensive package of 15 housing bills that were effective as of January 1, 2018. While not perfect from anyone’s perspective, that package balanced the different policies and alternatives and was determined to be the best way forward to create affordable housing and address the housing needs in our state.  Despite the fact that not even one construction cycle has elapsed, industry has come back through their lobby and certain legislators to try to undo all that was accomplished in 2017.

The 2019 legislative package is an effort to roll back the requirements for inclusionary affordable housing (by way of retroactive application in SB 330 and other bills) and to trample all over the local controls, the safety, habitat, conservation, historic preservation, and other interests and elements of good planning that were taken into account though weakened in the 2017 compromise legislation.

Hydee Feldstein is a retired attorney who lives in Los Angeles and is active on land use issues in her neighborhood council. Please send any comments to hydeefeldstein@yahoo.com

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February 22, 2019 Introduced by Senator Wiener An act to amend Section 65589.5 of the Government Code, relating to housing.

SB 592, as amended, Wiener. Housing Accountability Act.

(1) The Housing Accountability Act, among other things, prohibits a local agency from disapproving or conditioning approval in a manner that renders infeasible a housing development project that complies with applicable, objective general plan, zoning, and subdivision standards and criteria in effect at the time the application for the project is deemed complete within the meaning of the Permit Streamlining Act, unless the local agency makes specified written findings based on a preponderance of the evidence in the record. This bill would provide that the act applies to any form of land use decision by a local agency, including a ministerial or use by right decision and a discretionary approval. The bill would require an application that is not subject to the Permit Streamlining Act to be deemed or determined to be complete for purposes of the act at the time the application is submitted to the local agency, and would make conforming changes. The bill would specify that a general plan, zoning, or subdivision standard or criterion is not “applicable” for purposes of the act if its applicability to a housing development project is discretionary or if the project could be approved without the standard or criterion being met. By increasing the duties on local agencies, this bill would impose a state-mandated local program.

(2) The act provides that disproving a housing development project includes, among other things, any instance in which a local agency votes on the proposed housing development project application, or the local agency fails to comply with the time periods specified in the Permit Streamlining Act.

This bill would provide that disproving a housing development project for purposes of the act includes any instance in which a local agency takes action on the proposed housing development project application and disproves the project, or in the case of a ministerial project, if the local agency fails to comply with the time periods specified in the applicable law authorizing the ministerial project.

(3) The act requires a local agency that considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with applicable law to provide the applicant with a written document, within a specified amount of time, identifying the provisions the application is not in compliance with and an explanation of the reasons for the decision.

This bill would require a local agency that determines an application that was revised after the agency’s initial denial is inconsistent, not in compliance, or not in conformity with applicable law to provide a similar written document within 30 days providing an explanation of the reasons for the decision. By requiring local agencies to provide additional specified written documents and explanations, this bill would impose a state-mandated local program.

(4) The act defines a housing development project to mean a use consisting of residential units only, specified mixed-use developments, and transitional housing or supportive housing.

The bill would define a housing development project for purposes of the act to also include a single unit, including an accessory dwelling unit, or the addition of one or more bedrooms to an existing residential unit.

(5) The act requires a local agency that proposes to impose a condition on a housing development project that the project be developed at a lower density to base its decision upon specified findings. The act defines “lower density” to mean any conditions that have the same effect or impact on the ability of the project to provide housing.

The bill would specify that conditions that have the same effect or impact on the ability of the project to provide housing include a reduction in the number of bedrooms or other normal residential features, or the substantial impairment of the housing development project’s economic viability.

(6) Existing law authorizes the applicant to bring an action to enforce the act, and authorizes a court to issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development project or emergency shelter. Existing law requires the court to award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, unless an exception applies.

This bill would authorize a plaintiff or petitioner who is the project applicant to seek compensatory damages for a violation of the act. The bill would specify that in an action brought to enforce the act, evidence is required to be taken and discretion in the determination of facts is vested in an inferior tribunal, corporation, board, or officer, regardless of whether the local agency’s action was made at a legally required hearing.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

**This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority   Appropriation: no   Fiscal Committee: yes   Local Program: noyes  

SECTION 1.

 Section 65589.5 of the Government Code is amended to read:

65589.5.

 (a)

 (1) The Legislature finds and declares all of the following:
(A) The lack of housing, including emergency shelters, is a critical problem that threatens the economic, environmental, and social quality of life in California.
(B) California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.
(C) Among the consequences of those actions are discrimination against low-income and minority households, lack of housing to support employment growth, imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality deterioration.
(D) Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.
(2) In enacting the amendments made to this section by the act adding this paragraph, the Legislature further finds and declares the following:
(A) California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives.
(B) While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor.
(C) The crisis has grown so acute in California that supply, demand, and affordability fundamentals are characterized in the negative: underserved demands, constrained supply, and protracted unaffordability.
(D) According to reports and data, California has accumulated an unmet housing backlog of nearly 2,000,000 units and must provide for at least 180,000 new units annually to keep pace with growth through 2025.
(E) California’s overall homeownership rate is at its lowest level since the 1940s. The state ranks 49th out of the 50 states in homeownership rates as well as in the supply of housing per capita. Only one-half of California’s households are able to afford the cost of housing in their local regions.
(F) Lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians.
(G) The majority of California renters, more than 3,000,000 households, pay more than 30 percent of their income toward rent and nearly one-third, more than 1,500,000 households, pay more than 50 percent of their income toward rent.
(H) When Californians have access to safe and affordable housing, they have more money for food and health care; they are less likely to become homeless and in need of government-subsidized services; their children do better in school; and businesses have an easier time recruiting and retaining employees.
(I) An additional consequence of the state’s cumulative housing shortage is a significant increase in greenhouse gas emissions caused by the displacement and redirection of populations to states with greater housing opportunities, particularly working- and middle-class households. California’s cumulative housing shortfall therefore has not only national but international environmental consequences.
(J) California’s housing picture has reached a crisis of historic proportions despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section.
(K) The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled.
(L) It is the policy of the state that this section should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.
(3) It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.
(b) It is the policy of the state that a local government not reject or make infeasible housing development projects, including emergency shelters, that contribute to meeting the need determined pursuant to this article without a thorough analysis of the economic, social, and environmental effects of the action and without complying with subdivision (d).
(c) The Legislature also recognizes that premature and unnecessary development of agricultural lands for urban uses continues to have adverse effects on the availability of those lands for food and fiber production and on the economy of the state. Furthermore, it is the policy of the state that development should be guided away from prime agricultural lands; therefore, in implementing this section, local jurisdictions should encourage, to the maximum extent practicable, in filling existing urban areas.
(d) A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following:
(1) The jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588, is in substantial compliance with this article, and the jurisdiction has met or exceeded its share of the regional housing need allocation pursuant to Section 65584 for the planning period for the income category proposed for the housing development project, provided that any disapproval or conditional approval shall not be based on any of the reasons prohibited by Section 65008. If the housing development project includes a mix of income categories, and the jurisdiction has not met or exceeded its share of the regional housing need for one or more of those categories, then this paragraph shall not be used to disapprove or conditionally approve the housing development project. The share of the regional housing need met by the jurisdiction shall be calculated consistently with the forms and definitions that may be adopted by the Department of Housing and Community Development pursuant to Section 65400. In the case of an emergency shelter, the jurisdiction shall have met or exceeded the need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. Any disapproval or conditional approval pursuant to this paragraph shall be in accordance with applicable law, rule, or standards.
(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. 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 or determined to be complete. Inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety.
(3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible.
(4) The housing development project or emergency shelter is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project.
(5) The housing development project or emergency shelter is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed or determined to be complete, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article. For purposes of this section, a change to the zoning ordinance or general plan land use designation subsequent to the date the application was deemed or determined to be complete shall not constitute a valid basis to disapprove or condition approval of the housing development project or emergency shelter.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing development project if the housing development project is proposed on a site that is identified as suitable or available for very low, low-, or moderate-income households in the jurisdiction’s housing element, and consistent with the density specified in the housing element, even though it is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation.
(B) If the local agency has failed to identify in the inventory of land in its housing element sites that can be developed for housing within the planning period and are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels pursuant to Section 65584, then this paragraph shall not be utilized to disapprove or conditionally approve a housing development project proposed for a site designated in any element of the general plan for residential uses or designated in any element of the general plan for commercial uses if residential uses are permitted or conditionally permitted within commercial designations. In any action in court, the burden of proof shall be on the local agency to show that its housing element does identify adequate sites with appropriate zoning and development standards and with services and facilities to accommodate the local agency’s share of the regional housing need for the very low, low-, and moderate-income categories.
(C) If the local agency has failed to identify a zone or zones where emergency shelters are allowed as a permitted use without a conditional use or other discretionary permit, has failed to demonstrate that the identified zone or zones include sufficient capacity to accommodate the need for emergency shelter identified in paragraph (7) of subdivision (a) of Section 65583, or has failed to demonstrate that the identified zone or zones can accommodate at least one emergency shelter, as required by paragraph (4) of subdivision (a) of Section 65583, then this paragraph shall not be utilized to disapprove or conditionally approve an emergency shelter proposed for a site designated in any element of the general plan for industrial, commercial, or multifamily residential uses. In any action in court, the burden of proof shall be on the local agency to show that its housing element does satisfy the requirements of paragraph (4) of subdivision (a) of Section 65583.
(e) Nothing in this section shall be construed to relieve the local agency from complying with the congestion management program required by Chapter 2.6 (commencing with Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Neither shall anything Nothing in this section shall be construed to relieve the local agency from making one or more of the findings required pursuant to Section 21081 of the Public Resources Code or otherwise complying with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

(f) 

(1) Nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.
(2) Nothing in this section shall be construed to prohibit a local agency from requiring an emergency shelter project to comply with objective, quantifiable, written development standards, conditions, and policies that are consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and consistent with, meeting the jurisdiction’s need for emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development standards, conditions, and policies shall be applied by the local agency to facilitate and accommodate the development of the emergency shelter project.
(3) This section does not prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.
(4) For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.
(g) This section shall be applicable to charter cities because the Legislature finds that the lack of housing, including emergency shelter, is a critical statewide problem.
(h) The following definitions apply for the purposes of this section:
(1) “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.

(2) 

(A) “Housing development project” means a use consisting of any of the following:
(i) Residential units only.
(ii) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.
(iii) Transitional housing or supportive housing.

(B) A “housing development project” may solely be, or may include, a single unit, including an accessory dwelling unit as defined in Section 65852.2.

(C) A “housing development project” may solely be, or may include, the addition of one or more bedrooms to an existing residential unit.

(3) “Housing for very low, low-, or moderate-income households” means that either
  • (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or
  • (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code.

Housing units targeted for lower income households shall be made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the lower income eligibility limits are based.
Housing units targeted for persons and families of moderate income shall be made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size made in accordance with the adjustment factors on which the moderate-income eligibility limits are based.

(4) “Area median income” means area median income as periodically established by the Department of Housing and Community Development pursuant to Section 50093 of the Health and Safety Code. The developer shall provide sufficient legal commitments to ensure continued availability of units for very low or low-income households in accordance with the provisions of this subdivision for 30 years.
(5) “Disapprove the housing development project” includes any instance in which a local agency does either of the following:
(A) Votes Takes action on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit.
(B) Fails to comply with the time periods specified in subdivision (a) of Section 65950 or, in the case of a ministerial project, the time period specified in the applicable law authorizing that ministerial project. An extension of time pursuant to Article 5 (commencing with Section 65950) or the time period specified in the applicable law authorizing that ministerial project shall be deemed or determined to be to be an extension of time pursuant to this paragraph.
(6) “Conditions that have the same effect or impact on the ability of the housing development project to provide housing” shall include, but are not limited to, each of the following:
(A) Reduction in the number of bedrooms or other normal residential features, such as a living room or kitchen.
(B) The substantial impairment of the housing development project’s economic viability.
(i) If any city, county, or city and county denies approval or imposes conditions, including design changes, lower density, or a reduction of the percentage of a lot that may be occupied by a building or structure under the applicable planning and zoning in force at the time the application is deemed or determined to be complete pursuant to Section 65943, that have a substantial adverse effect on the viability or affordability of a housing development for very low, low-, or moderate-income households, and the denial of the development or the imposition of conditions on the development is the subject of a court action which challenges the denial or the imposition of conditions, then the burden of proof shall be on the local legislative body to show that its decision is consistent with the findings as described in subdivision (d) and that the findings are supported by a preponderance of the evidence in the record. For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the project to provide housing.

(j) 

(1) 

(A) When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project’s application is deemed or determined to be complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:
(i) 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 or determined to be complete.
(ii) 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.
(B) For purposes of this section, a general plan, zoning, or subdivision standard or criterion is not “applicable” if its applicability to a housing development project is discretionary or if the project could be approved without the standard or criterion being met.

(2) 

(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is deemed or determined to be complete, if the housing development project contains 150 or fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project is deemed or determined to be complete, if the housing development project contains more than 150 units.
(B) If an applicant elects to revise the application in response to any comments, and the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, the local agency shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity within 30 days of the date that the revisions are submitted.
(C) If the local agency fails to provide the required documentation pursuant to subparagraph (A) or (B), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.
(3) For purposes of this section, the receipt of a density bonus pursuant to Section 65915 shall not constitute a valid basis on which to find a proposed housing development project is inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision specified in this subdivision.
(4) For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.
(5) For purposes of this section, “lower density” includes any conditions that have the same effect or impact on the ability of the housing development project to provide housing.

(k)

 (1) 

(A) The applicant, a person who would be eligible to apply for residency in the housing development project or emergency shelter, or a housing organization may bring an action to enforce this section. If, in any action brought to enforce this section, a court finds that either
  • (i) the local agency, in violation of subdivision (d), disapproved a housing development project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate-income households, including farmworker housing, without making the findings required by this section or without making findings supported by a preponderance of the evidence, or
  • (ii) the local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria, or imposed a condition that the project be developed at a lower density, without making the findings required by this section or without making findings supported by a preponderance of the evidence, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the housing development project or emergencyshelter, including approval of all necessary entitlements for construction thereof. The court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development project or emergency shelter in violation of this section. The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section. A plaintiff or petitioner who is the project applicant may seek compensatory damages for a violation of this section. For purposes of this section, “lower density” includes conditions that have the same effect or impact on the ability of the housing development project to provide housing.

(B) 

(i) Upon a determination that the local agency has failed to comply with the order or judgment compelling compliance with this section within 60 days issued pursuant to subparagraph (A), the court shall impose fines on a local agency that has violated this section and require the local agency to deposit any fine levied pursuant to this subdivision into a local housing trust fund. The local agency may elect to instead deposit the fine into the Building Homes and Jobs Trust Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund. The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project on the date the application was deemed or determined to be complete pursuant to Section 65943. In determining the amount of fine to impose, the court shall consider the local agency’s progress in attaining its target allocation of the regional housing need pursuant to Section 65584 and any prior violations of this section. Fines shall not be paid out of funds already dedicated to affordable housing, including, but not limited to, Low and Moderate Income Housing Asset Funds, funds dedicated to housing for very low, low-, and moderate-income households, and federal HOME Investment Partnerships Program and Community Development Block Grant Program funds. The local agency shall commit and expend the money in the local housing trust fund within five years for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households. After five years, if the funds have not been expended, the money shall revert to the state and be deposited in the Building Homes and Jobs Trust Fund, if Senate Bill 2 of the 2017–18 Regular Session is enacted, or otherwise in the Housing Rehabilitation Loan Fund, for the sole purpose of financing newly constructed housing units affordable to extremely low, very low, or low-income households.
(ii) If any money derived from a fine imposed pursuant to this subparagraph is deposited in the Housing Rehabilitation Loan Fund, then, notwithstanding Section 50661 of the Health and Safety Code, that money shall be available only upon appropriation by the Legislature.
(C) If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled, including, but not limited to, an order to vacate the decision of the local agency and to approve the housing development project, in which case the application for the housing development project, as proposed by the applicant at the time the local agency took the initial action determined to be in violation of this section, along with any standard conditions determined by the court to be generally imposed by the local agency on similar projects, shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency.

(2) For purposes of this subdivision, “housing organization” means a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project. A housing organization may only file an action pursuant to this section to challenge the disapproval or reduction in density of a housing development project by a local agency. A housing organization shall be entitled to reasonable attorney’s fees and costs if it is the prevailing party in an action to enforce this section. Nothing in this section is intended to limit the application of Section 1021.5 of the Code of Civil Procedure.

(l) If the court finds that the local agency
  • (1) acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section and
  • (2) failed to carry out the court’s order or judgment within 60 days as described in subdivision (k), the court, in addition to any other remedies provided by this section, shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of subdivision (k) by a factor of five. For purposes of this section, “bad faith” includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.
(m) Irrespective of whether the local agency’s action was made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken in any action brought to enforce the provisions of this section and discretion in the determination of facts is vested in an inferior tribunal, corporation, board, or officer. Any action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of the Code of Civil Procedure no later than 30 days after the petition is served, provided that the cost of preparation of the record shall be borne by the local agency, unless the petitioner elects to prepare the record as provided in subdivision (n) of this section. A petition to enforce the provisions of this section shall be filed and served no later than 90 days from the later of
  • (1) the effective date of a decision of the local agency imposing conditions on, disapproving, or any other final action on a housing development project or
  • (2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of subdivision (h). Upon entry of the trial court’s order, a party may, in order to obtain appellate review of the order, file a petition within 20 days after service upon it of a written notice of the entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow, or may appeal the judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure. If the local agency appeals the judgment of the trial court, the local agency shall post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is the project applicant.
(n) In any action, the record of the proceedings before the local agency shall be filed as expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil Procedure or subdivision (m) of this section, all or part of the record may be prepared
  • (1) by the petitioner with the petition or petitioner’s points and authorities,
  • (2) by the respondent with respondent’s points and authorities,
  • (3) after payment of costs by the petitioner, or
  • (4) as otherwise directed by the court. If the expense of preparing the record has been borne by the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs.
(o) For purposes of this section, an application that is not subject to Chapter 4.5 of Division 1 of Title 7 (commencing with Section 65920) shall be deemed or determined to be complete at the time the application is submitted to the local agency.
(p) This section shall apply to any form of land use decision by a local agency, including, but not limited to, a ministerial or use by right decision or a discretionary approval.
(q) This section shall be known, and may be cited, as the Housing Accountability Act.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

 ** Unconstitutional ? NOTE: constitutional principles require affected property owners receive notice and an opportunity to be heard when adjudicatory land use decisions constitute a substantial deprivation of property rights.
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