Historically, local governments have had broad discretion in the approval of residential development. However, local parochialism and prejudices often result in policies and practices that exclude the development of affordable housing, thereby exacerbating patterns of racial and economic segregation and creating a substantial imbalance of jobs and housing. In recent years, several laws have been adopted which place important limitations and obligations on local decision-makers in the area of affordable housing.
Housing Element Law (Gov. Code Sec. 65580 et seq.) Every city and county must adopt a housing element as part of its general plan. Most importantly, a housing element must identify sites appropriate for affordable housing and address governmental constraints to development. If the locality fails to adopt a housing element or adopts one that is inadequate, a court can order the locality to halt development until an adequate element is adopted or order approval of specific affordable housing developments.
In most cases, the identification of sites must include sites zoned for multifamily development by right. The court in Hoffmaster v. City of San Diego said that to qualify, a site must be specifically identified and available for immediate development without restrictive zoning burdens. (55 Cal.App. 4th 1098 (1997).)
"Anti-Nimby” Law (Gov. Code Sec. 65589.5). Even in communities with valid housing elements, local governments often deny approval of good developments. Misinformation and prejudice can generate fierce opposition to proposed projects. Recognizing this, state law prohibits a local agency from disapproving a low income housing development, or imposing conditions that make the development infeasible, unless it finds that one of six narrow conditions exist. Of the six, three are of most import: 1) the project would have an unavoidable impact on health and safety which cannot be mitigated; 2) the neighborhood already has a disproportionately high number of low income families; or 3) the project is inconsistent with the general plan and the housing element is in compliance with state law.
Prohibition of Discrimination Against Affordable Housing (Gov. Code Sec. 65008). This statute forbids discrimination against affordable housing developments, developers or potential residents by local agencies when carrying out their planning and zoning powers. Agencies are prohibited not only from exercising bias based on race, sex, age or religion, but from discriminating against developments because the development is subsidized or occupancy will include low or moderate income persons. Local governments may not impose different requirements on affordable developments than those imposed on non-assisted projects. Just as with the other state and federal fair housing laws (see below), this law applies even if the discrimination is not intentional. It applies to any land use action that has a disproportionate impact on assisted developments or the potential minority or low income occupants.
California and Federal Fair Housing Laws. These laws prohibit discrimination by local government and individuals based on race, color, religion, sex, familial status, marital status, national origin, ancestry or mental or physical disability. The California Fair Employment and Housing Act (Gov. Code Sec. 12900 et seq.) expressly prohibits discrimination through public or private land use practices and decisions that make housing opportunities unavailable. Similarly, the federal Fair Housing Act (42 U.S.C. Sec. 3601 et seq., or “Title VIII”) has been held to prohibit public and private land use practices and decisions that have a disparate impact on the protected groups. The federal Fair Housing Amendments Act of 1988 requires local governments considering housing projects for the disabled to make reasonable accommodations in rules, policies and practices if necessary to afford disabled persons equal opportunity for housing (42 U.S.C. Sec. 3604(f)(3)(B)).
Water/Sewer Service (Gov Code Sec. 65589.7). Local water and sewer districts must grant priority for service hook-ups to projects that help meet the community’s fair share housing need.
Density Bonus Law (Gov Code Sec. 65915-16). Local governments must grant projects with a prescribed minimum percentage of affordable units, a 25% increase in density and at least one incentive. An incentive can include a reduction in development, parking or design standards, modification of zoning requirements or direct financial aid.
Permit Streamlining Act (Gov Code Sec. 65920 et seq.) This law requires cities and counties to publish a description of the information that project applicants must file and mandates a timeline for making a decision on the application. If the local government fails to act within the prescribed time limits, a development project is “deemed” approved.
Bonds/Attorney Fees in NIMBY Lawsuits. A court may require persons suing to halt affordable housing projects to post a bond (Code of Civil Procedure Sec. 529.2) and to pay attorneys fees (Gov. Code Sec. 65914).
CEQA Exemption. In 1997 the Legislature enacted AB 175 (Torlakson), amending Pub Res Code Sec. 21080.14, to provide that in an urbanized area, affordable housing developments of not more than 100 units are exempt from CEQA, provided the site is, among other things, less than 5 acres, not a wildlife habitat and is assessed for environmental contaminants. (See Sec. 21080.10 for a similar farmworker housing exemption.)
By Mike Rawson
California Affordable Housing Law ProjectSource: http://www.housingadvocates.org/default.asp?ID=167
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