Law roundup: New and Improved Housing Accountability Act

The Housing Accountability Act, Gov. Code Section 65589.5, was adopted in 1982 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 of or render infeasible housing development projects and emergency shelters." As stated in the three recently adopted bills amending the act, this intent has not been fulfilled, and California has a housing supply and affordability crisis of historic proportions, partially caused by the activities of local governments that limit the approval of housing. The new provisions, effective Jan. 1, 2018, give the act the teeth it needs to hold local governments accountable to approve much-needed housing development See SB 167 (Skinner, Chapter 368, Statutes of 2017), AB 678 (Bocanegra, Chapter 373, Statutes of 2017), and AB 1515 (Daly, Chapter 378, Statutes of 2017).

The recently adopted reforms will strengthen the act's provisions, expand its applicability, and increase a local government's liability for violating the act.

The revisions modify the findings requirements to preponderance of the evidence, rather than the more deferential substantial evidence standard. The act now prohibits a city from disapproving a housing development project, including reducing density or imposing conditions comparable to a density reduction, unless it finds, based on a preponderance of the evidence, that the project would have an unavoidable impact on public health or safety that cannot be feasibly mitigated in any way other than rejecting the project or reducing its size.

The revisions expand the definition of "housing development project" to include a mixed-use project with at least two thirds residential floor area. The act protects housing or mixed use projects that comply with certain objective general plan, zoning and subdivision standards, regardless of whether or not they provide affordable housing, including specifically density bonus projects. Projects with at least 20 percent affordable housing for low income households or 100 percent affordable for moderate income households retain additional protection under the act, even if the projects do not comply with the zoning standards. The revisions also expand the definition of "lower density" to mean "any conditions that have the same effect or impact on the ability of the project to provide housing."

The revisions to the act include providing notice to applicants, within 30 days of a complete application for 150 or fewer units and 60 days for larger projects, if the local government considers a proposed project to be inconsistent with any of the objective zoning criteria, so that the applicant can modify the proposed project to meet the objective criteria prior to agency action on the entitlements. The revisions also provide that a development project is consistent with zoning, if there is "substantial evidence that would allow a reasonable person to conclude that the housing development project is consistent, compliant or in conformity."

The revised act also provides new remedies to compel a local government to comply with its terms. If a court finds that the government agency's action is not supported by a preponderance of the evidence, the court must issue an order to comply within 60 days. The court may also direct the local government to approve the housing development project, if the jurisdiction acted in bad faith. If the local government fails to comply within 60 days, the court must impose a fine of $10,000 per unit, which is increased five-fold if the court finds the government acted in bad faith. The act's revised provisions also allow for attorney fees for a prevailing claim, overriding the holding in Honchariw v. City of Stanislaus, 200 Cal. App. 4th 1066 (2011). These recent amendments will provide local governments the enforcement that they need to approve more housing developments when facing opposition, and will more effectively confront the state's housing crisis.