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California Government Code Section 65589.5

Legal Research Home > California Laws > Government Code > California Government Code Section 65589.5

65589.5.  (a) The Legislature finds and declares all of the
following:
   (1) The lack of housing, including emergency shelters, is a
critical problem that threatens the economic, environmental, and
social quality of life in California.
   (2) 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.
   (3) 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.
   (4) Many local governments do not give adequate attention to the
economic, environmental, and social costs of decisions that result in
disapproval of housing projects, reduction in density of housing
projects, and excessive standards for housing projects.
   (b) It is the policy of the state that a local government not
reject or make infeasible housing developments, 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 (d)
of Section 50199.50 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 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
substantial 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 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 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
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 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 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 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 complete, and the
jurisdiction has adopted a revised housing element in accordance with
Section 65588 that is in substantial compliance with this article.
   (A) This paragraph cannot be utilized to disapprove or
conditionally approve a housing development project if the
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 that 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 and low-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 (Division 20 (commencing
with Section 30000) of the Public Resources Code). Neither shall
anything in this section 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 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
development project or emergency shelter.
   (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) "Housing development project" means a use consisting of any of
the following:
   (A) Residential units only.
   (B) Mixed-use developments consisting of residential and
nonresidential uses in which nonresidential uses are limited to
neighborhood commercial uses and to the first floor of buildings that
are two or more stories. As used in this paragraph, "neighborhood
commercial" means small-scale general or specialty stores that
furnish goods and services primarily to residents of the
neighborhood.
   (C) Transitional housing or supportive housing.
   (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 moderate-income households as
defined in Section 50093 of the Health and Safety Code, or
middle-income households, 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 development project" includes any instance in
which a local agency does either of the following:
   (A) Votes on a proposed housing development project application
and the application is disapproved.
   (B) Fails to comply with the time periods specified in subdivision
(a) of Section 65950. An extension of time pursuant to Article 5
(commencing with Section 65950) shall be deemed to be an extension of
time pursuant to this paragraph.
   (i) If any city, county, or city and county denies approval or
imposes restrictions, including design changes, a reduction of
allowable densities or 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 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 restrictions on the development is
the subject of a court action which challenges the denial, 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 substantial
evidence in the record.
   (j) When a proposed housing development project complies with
applicable, objective general plan and zoning standards and criteria,
including design review standards, in effect at the time that the
housing development project's application is determined to be
complete, but the local agency proposes to disapprove the project or
to approve it upon the 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 substantial evidence on the record that both of the following
conditions exist:
   (1) 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 complete.
   (2) 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.
   (k) The applicant or any person who would be eligible to apply for
residency in the development or emergency shelter may bring an
action to enforce this section. If in any action brought to enforce
the provisions of this section, a court finds that the local agency
disapproved a 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 sufficient findings supported by
substantial 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
development project or emergency shelter. 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 who proposed the housing development or
emergency shelter, except under extraordinary circumstances in which
the court finds that awarding fees would not further the purposes of
this section. 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, in which case the
application for the project, as constituted 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 approved unless the applicant consents to a different
decision or action by the local agency.
   (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, may impose fines upon the local
agency that the local agency shall be required to deposit into a
housing trust fund. Fines shall not be paid from funds that are
already dedicated for affordable housing, including, but not limited
to, redevelopment or low- and moderate-income housing funds and
federal HOME and CDBG funds. The local agency shall commit the money
in the 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. For purposes of this section, "bad
faith" shall mean an action that is frivolous or otherwise entirely
without merit.
   (m) 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. Upon entry of the trial
court's order, a party shall, 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. 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) This section shall be known, and may be cited, as the Housing
Accountability Act.

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Last modified: March 17, 2014