HOUSING ELEMENTS: BEWARE OF WHAT YOU PROMISE. League of California Cities Annual Conference. September 19, 2013 Barbara E. Kautz

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1 1 HOUSING ELEMENTS: BEWARE OF WHAT YOU PROMISE League of California Cities Annual Conference September 19, 2013 Barbara E. Kautz goldfarb lipman attorneys

2 TOPICS Housing Element Adoption Claims, Claims, Claims Practice Tips

3 IT S THAT TIME! DEADLINES FOR FIFTH CYCLE HOUSING ELEMENTS: SANDAG: April 30, 2013 SCAG: October 15, 2013 SACOG: October 31, 2013 TRPA: June 15, 2014 ABAG: January 31, 2015

4 BE ON TIME! Current Law No penalty for failure to adopt on time (San Mateo Coastal Landowners) Fifth Cycle Every 4 years rather than every 8 if not adopted within 120 days of the due date Build In Lead Time 60 days for HCD to review draft; ideally time for second review; PC and CC hearings to adopt

5 STANDARD OF REVIEW Fonseca v. City of Gilroy: Does the Housing Element contain the elements mandated by the statute? If so, are the conclusions arbitrary, capricious, or entirely lacking in evidentiary support? HCD Housing Element Update Guidance Completeness Checklist

6 THE ROLE OF HCD Cities shall submit draft and adopted housing elements to HCD to review for substantial compliance If not found in compliance: Make changes to comply; or Adopt written findings explaining why in compliance, despite HCD s findings If found in substantial compliance, rebuttable presumption of validity; but no presumption of invalidity

7 DEALING WITH HCD More rigorous than the courts; HCD looks at whether programs are adequate to meet objectives May deny certification for failure to implement Practice Tips: Try to get written confirmation from HCD before adopting PRA requests Do not adopt programs you can t accomplish just to make HCD happy

8 CONSEQUENCES OF AN INADEQUATE HOUSING ELEMENT Cannot deny an affordable project for failure to comply with general plan and zoning Ineligible for certain grants (e.g., One Bay Area grants) Attorneys fees ($1.9M in Pleasanton) Onerous settlements Suspend authority to issue permits or mandate issuance

9 CLAIMS, CLAIMS, CLAIMS: LIMITATIONS PERIODS Facial challenges any interested party: 90 days after adoption; or 60 days after the date that HCD reports its findings on the adopted housing element

10 LIMITATIONS PERIODS: CLAIMS TO FACILITATE AFFORDABLE HOUSING 70% of cases brought by public interest groups 65009(d) and AB 325: Variable notice periods Up to 60 days to respond Accrual of cause of action Limitations period Applies to: adoption & amendment of housing elements; adequacy of density bonus ordinance; least-cost zoning & growth control

11 LIMITATIONS PERIODS CLAIMS TO FACILITATE AFFORDABLE HOUSING Current (if AB 325 not signed) Housing Element - Certified Housing Element Not Certified Density Bonus Ordinance, Least Cost Zoning, Growth Control Notice 90 days 270 days 2 years 180 days Limitation s Period after Accrual* One year 6 months 1 year 6 months *Accrual occurs 60 days after notice is filed or legislative body takes final action in response to notice, whichever occurs first.

12 SB NEW PROVISIONS: REQUIRED REZONING Communities with 8-year elements must complete required rezonings within 3 years after the earlier of: 90 days after receipt of HCD comments on draft housing element; or Date of adoption of housing element if HCD found element inadequate; or 3 years days after due date if adopted late Possibility of one-year extension

13 SB NEW REMEDIES Court can compel rezoning; Builder s remedy for 49% affordable on site supposed to be rezoned; or Compel compliance with deadlines and requirements regarding: Adequate sites; Housing types; Remove constraints; Assist in development of affordable housing

14 OTHER CLAIMS Housing elements must be updated as appropriate Urban Habitat changed conditions Attack on project: inadequate GP Limitations period: action v. inaction CCP 338: 3 years for inaction? When does claim accrue: G.C for action?

15 FAILURE TO ADOPT ANNUAL REPORT General law cities must adopt by April 1 of each year Must be considered at Council meeting If fail to adopt by May 31, claim may be brought Litigants entitled to fees Likely 3-year limitations under CCP 338 Adopt the *!@* report

16 FAIR HOUSING AND RELATED CLAIMS Three Key Statutes Fair Housing Act Fair Employment and Housing Act Planning and Zoning Law: Section Many more categories protected than in the others

17 TYPICAL FAIR HOUSING CLAIMS RELATED TO HOUSING ELEMENTS Disparate Impact: Neutral policy either: Causes segregation; or Has a discriminatory effect on a protected group If discriminatory intent is shown for the policy, plaintiffs will usually win Public comments can be ascribed to the policy-makers

18 KNOW WHAT GROUPS ARE PROTECTED All: Disabled including recovering substance abusers Families with children Section 65008: Affordable housing Multifamily housing consistent with general plan and zoning

19 LITIGATING A FAIR HOUSING CLAIM Much more expensive to defend, and fewer defenses: No exhaustion requirements; Not confined to the record; extensive discovery Hard to defeat on summary judgment Very large fees if plaintiffs win and almost no way for cities to recover

20 FAIR HOUSING CLAIMS ASSOCIATED WITH HUD GRANTS Increased HUD interest in fair housing Westchester County False Claims Act case Analysis of Impediments Any community receiving CDBG or HOME or other HUD funds must pay attention Integrate recommendations into housing element New proposed regulations for affirmatively furthering fair housing

21 OUTSTANDING ISSUES Can evidence outside the record be introduced in housing element litigation? Plaintiffs don t want a record because of costs Cities don t want discovery Is HCD s standard for substantial compliance different from the courts? Or, is HCD above the law?

22 PRACTICE TIPS Adopt the Housing Element within 120 days of the due date Make staff and consultants complete the Completeness Checklist' Do not promise more than you can accomplish; write legislative judgment into policies Ensure the Element is consistent with the AI Attempt to receive written HCD approval before adoption. If not possible, adopt written findings

23 PRACTICE TIPS (CONT.) Challenge any remarks made about protected groups and affordable housing Adopt rezonings on time Submit Housing Element Annual Reports If litigation is threatened or seems inevitable: Review yourself for substantial compliance and evidence in the record. Consider a fair housing claim

24 Barbara Kautz, Partner Goldfarb & Lipman LLP 1300 Clay Street, 11 th Floor Oakland, CA