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HomeMy WebLinkAboutItem 4.07 Oppose SB910CITY CLERK FILE # 660-40 AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 17, 2001 SUBJECT: Opposition to SB 910; Penalties for Non-Compliant Housing Elements Report Prepared By: Jason Behrmann, Administrative Analyst ATTACHMENTS: RECOMMENDATION:d 1) 2) Text of SB 910, as amended March 27, 2001 Draft letter opposing SB 910 Authorize the Mayor to sign and send letter opposing SB 910, penalties for non-compliant housing elements. FINANCIAL STATEMENT: If the legislation becomes law, the City could face fines ofup to $5,436,000 and reduction of Gas Tax revenues by 20% ($120,000) in 2002. DESCRIPTION: SB 910 establishes penalties for local jurisdictions if a plan reviewer at the Department of Housing and Community Development (HCD) has found that the jurisdiction' s housing element does not subst,antially comply with state law. The penalty includes a fine of up to $1,000 per unit of the total projected housing need for the jurisdiction, and an award for the plaintiff, covering attorney' s fees and costs. The total projected housing need for the City of Dublin is 5,436 units, which equates to a maximum penalty of $5,436,000. This bill would also reduce the City' s portion of the State's Gas Tax if HCD finds the housing element out of compliance. Starting with a 20% reduction and gradually increasing to 60% depending on how long the City is out of compliance. The City's 1999/2000 gas tax revenues were over $600,000. A 20% reduction would mean a loss of approximately $120,000 with a 60% loss equaling a reduction of $360,000. Furthermore, the City' s portion would be reallocated back into the State pool and redistributed to those who are in compliance. The City is currently in the process of updating its housing element but it is unknown at this time whether it will be completed by the deadline of January 1, 2002 and whether it will include every item recommended by HCD through the state-supervised Regional Housing Need Allocation process. This bill would force the City to include items in the housing element that may not be in the best interest of the community or face serious penalties: H/cc-forms/agdastmt. doc ITEM NO. RECOMMENDATION: Staff recon'~nends that the Council authorize the Mayor to sign and send the attached letter opposing SB 9 10, penalties for non-compliant housing elements. SB 910 Senate Bill- AIViENDED Page 1 of 3 BILL NUMBER: SB 910 AMENDED BILL TEXT AMENDED IN SENATE MARCH 27, 2001 INTRODUCED BY Senators Dunn, Burton, Rayncs, =nd Hontcitk Senator Dunn (Coauthors~ Senators Burton, Haynes, and Monteith) FEBRUARY 23, 2001 An act to amend Sections 65587 and 65589.3 of , and to add Section 65585.5 to, the Government Code, relating to general plans, and making an appropriation therefor° LEGISLATIVE COUNSEL'S DIGEST SB 910, as amended, Dunno General plans: housing elements. (1) Existing law requires each city, county, or city and county to prepare and adopt a general plan for its jurisdiction that contains certain mandatory elements, including a housing element. A city, county, a city and county is required to submit a draft housing element or draft amendment to its housing element to the Department of Housing and Community Development for a determination of whether the draft complies with state law governing housing elements° Existing law, until June 30, 2009, exempts any local government within the jurisdiction of the San Diego Association of Governments from this review requirement if it instead submits to the department with its housing element a self-certification of compliance with state lawo In an action brought by any party to review the conformity of a housing element with applicable statelaw, a court review shall extend to whether the housing element, or portion thereof or revision thereto; substantially complies with that law. This bill would require a court, on a finding that there is not substantial compliance, to award the plaintiff reasonable attorney's fees and costs and to levy a penalty not to exceed $1,000 per unit of the total projected housing need for the jurisdiction. The bill would provide that all penalties shall accrue to the Housing Rehabilitation Loan Fund° Because all money in this fund is continuously appropriated to the Department of Housing and Community Development for specified purposes, this bill would make an appropriation. (2) Existing law provides that, in any action filed on or after January 1, 1991, challenging the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if the Department of Housing and Community Development has found thatI the element or amendment substantially complies with the applicable lawo This bill would provide that, in any action filed on or after January 1, 2002, challenging the validity of a housing element, there shall be a rebuttable presumption of nonvalidity of the element or amendment if the department has found that the element or amendment does not substantially comply. This bill would dcclarc tkc intcnt of thc Lcgislaturc tc ~;ithhold unidcntificd state funding from require the Controller to reduce by specified percentages the monthly allocation of funds disbursed under various fuel tax laws to any city, county, or city and county that docc not kavc a whose third or subsequent revision of its housing element is not in substantial compliance with state law and to redistribute the money to those oiticc, oountics, or oitics http ://www.lira.net/billtexts/ca/0102/sen/sb_910_bill_20010327_amended_sen.h A'H'ACH M liNT 1 SB 910 Senate Bill - AMENDED Page 2 of 3 and countics whosc houcing olcmcnts are in oomp!iancc in the following month. The bill would require the ~epartment to report to the Controller monthly a list of noncompliant jurisdictions The bill would state that, for the purposes of this provision, an authorized self-certification of a housing element shall be deemed to have been approved by the department unless a court finds that jurisdiction's housing element does not substantially comply with state law Vote: 2/3. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. 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. If a court finds that any housing element or portion thereof does not substantially comply with the requirements of this article, the court, in addition to any other remedy allowed by law, shall award the plaintiff reasonable attorney's fees and costs and shall levy a penalty not to exceed one thousand dollars ($1,000) per unit of the total projected housing need for the jurisdiction as identified pursuant to Section 65584. Any penalties shall accrue to the Housing Rehabilitation Loan Fund established by Section 50661 of the Health and Safety Code. (c) If a court finds that an action of a City, county, or cit.y 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. SEC. 2. Section 65589.3 of the Government Code is amended to read: 6558.9.3. (a) In any action filed on or after January ;1, 1991, taken to challenge the validity of a housing element, there shall be a rebuttable presumption of the validity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment substantially complies with the requirements of this article. (b) In any action filed on or after January 1, 2002, taken to challenge the validity of a housing element, there shall be a rebuttable presumption of the nonvalidity of the element or amendment if, pursuant to Section 65585, the department has found that the element or amendment does not substantially comply with the requirements of this article. EEC. 3. It is thc intcnt of the Lcgislaturc that a pcrccntagc of http ://www,lira.net/billtexts/ca/O 102/sen/sb_910_bill_20010327_amended_sen.html 4/9/01 SB 9 10 Senate Bill - AMENDED Page 3 of 3 SEC. 3. Section 65585.5 is added to the Government Code, to read: 65585.5. (a) The Controller shall reduce by the following percentages the monthly allocation of funds dispersed pursuant to subdivision (d), (e), or (f) of Section 2104 and Sections 2105, 2106, and 2107 of the Streets and Highways Code to any city, county, or city and county unless the city, county, or city and county has an adopted housing element that the Department of Housing and Community Development has determined pursuant to Section 65585 to be in substantial compliance with the requirements of this article: (1) The allocation shall be reduced by 20 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within 180 days of the deadline established by Section 65588° (2) The allocation shall be reduced by 40 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within one year of the deadline established by Section 65588. (3) The allocation shall be reduced by 60 percent for a city, county, or city and county whose third or subsequent revision of its housing element has not been found by the department to be in substantial compliance within two years of the deadline established by Section 65588. (b) Any funds withheld from a city, county, or city and county pursuant to this section shall be added to the total pool of funds to be allocated and disbursed in the following month. (c) For the purposes of this section, an adopted housing element that has been self-certified pursuant to Section 65585.1 shall be deemed to have been approved by the department, unless a court finds that the jurisdiction's housing element does not substantially comply with this article° (d) The department shall report to the COntroller by the 20th day of the month a list of cities, counties, and cities and counties whose third or subsequent housing element revisions, as of the !5th day of that month, have not been determined by the department to be in substantial compliance with the requirements of this article. The department shall also report the deadline date for the third or subsequent housing element revision established in Section 65588 for each respective jurisdiction on that list. an cngoing source of state funding shall be withhc!d from any city, county, or city and county that dccs not have an adopted housing clement that the Department of Rousing and Community Dcvc!opmcnt has determined pursuant to Section 65585 of the Covcrnmcnt Code to bc in substantial compliance L~ith the requirements of Article 10.6 (ccxnmcncing with Section 65580) of Chapter 3 of Division 1 of Title 7 of the Covcrnmcnt Code. It is further the intent of tkc Lcgislaturc to rcdistributc in the following montk any uithhcld funds among all cities, counties, and cities and counties whose housing elements the dcpartmcnt has determined to bc in compliance with state law. For the purposes of this section, a housing c!cmcnt that has boon self certified pursuant tc Section 65585.1 of the Covcrnmcnt Code shall bc dccmcd to have bccn approvcd by the deportment. http ://www.lira.net/billtexts/ca/O 102/seWsb_910_bill_20010327_amended_sen.html 4/9/01 CITY OF DUBLIN 1 O0 Civic Plaza, Dublin, California 94568 Website: http://www,ci.dublin.ca.us April 17, 2001 Senator Joe Dunn State Capitol, Room 2080 Sacramento, CA 95814 SB 910 (Dunn). Housing Elements. Gas Tax. Notice of Opposition Fines, Penalties, and Lawsuits/State Seizure of Dear Senator Durm: We regret to inform you that the City of Dublin OPPOSES your SB 910, as amended March 27, 2001. In brief, this measure establishes penalties for local jurisdictions if a plan reviewer at the Department of Housing and Community Development (HCD) has found that the jurisdiction' s housing element does not substantially comply with state law. Penalties include up to $1,000 per unit of the total projected housing need of the affected city or county, mandatory attorney' s fees and costs, and seizure of local gas tax funds. This approach is both punitive and offensive. This measure shifts the legal standard for housing element review from innocent until proven guilty to guilty until proven innocent, by declaring that a local housing element is presumed invalid if a local government fails to comply with every whim of the state plan reviewer. This change has the effect of elevating the opinion of a state plan reviewer above the opinion of a judge, and causing serious consequences for both local governments and developers, because any local decision made by the local government--issuing building permits, approving subdivision maps, adoption of zoning ordinances, approving development projects--based upon that general plan, become subject to legal challenges° Furthermore, this bill treats local elected officials as criminals by imposing $1,000-per-unit penalties based upon a badly flawed state-supervised Regional Housing Need Allocation process. The March 27th amendments to SB 910 have made an already objectionable measure even worse. SB 91 0' s new amendments will now reduce our scarce local subventions, the portion of the state's gas tax that is currently allocated directly to a local government, if we choose not to incorporate the changes that the HCD plan reviewer suggests. This is nothing less than a direct usurpation of local land use authority and revenues by the state. We completely object to this measure, which attempts to cast, local governments and their locally elected officials in a very negative light, such that they must be fined, sued, forced, and Area Code (925) · City Manager 833-6650 - City Council 833-6650 · Personnel 833-6605 Finance 833-6640 · Public Works/Engineering 833-6630 · Parks & Community Service Planning/Code Enforcement 833-6610 · Building Inspection 833-6620 · Fire Pre~ A'I'I'ACHMENT Printed on Recycled Paper 2 threatened into compliance with the state over a state supervised process. We care deeply about our community and the many needs of our constituents. Due to the lack of state-local fiscal reform, even after years of state surpluses, we struggle to meet the full range of needs for our community with limited property tax resources, and attempt to provide housing for our citizens with little help from the state or federal level to meet the affordable housing needs of our citizens. Therefore, we are offended by this measure and its focus on fines, penalties, and threats from the state over the review of our local housing element by state officials, who may never have even been to our City, and may care little about the variety or complexity of issues that we balance every day. Furthermore, this legislation ignores the already substantial powers of a Court to deal with invalid general plans under Section 65755 of the Govemment Code. The City of Dublin has devoted significant resources to providing adequate affordable housing to its residents. The City has built over 2,749 new housing units in the past five years including 57 very low-income apartment units. An affordable housing program has recently been adopted by the City Council that focuses on acquisition and rehabilitation of multi-family projects, new construction assistance for multi-family units, down payment assistance, and rental assistance. The City is also currently in the process of updating its housing element that will address the City' s policies and programs for meeting regional housing needs. Addressing this state's many housing needs requires a productive working relationship between local governments and the state, and a discussion that must involve the full scope of issues which affect housing production. This is the wrong approach. Sincerely, Guy S, Houston Mayor CO: Members and Consultant, Senate Appropriations Committee Senator Tom Torlakson Assembly Member Lynne Leach Senator John Burton Senator Ray Haynes Senator Dick Monteith Assembly Member Alan Lowenthal Assembly Member Pat Wiggins League of California Cities '2