By Glen Hansen
The recent decision by the Court of Appeal for the First Appellate District in Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.
In Urban Habitat, a nonprofit affordable housing corporation, along with a very low income single mother, brought a petition for writ of mandamus and complaint for declaratory relief action against the City of Pleasanton over the City’s failure to meet its share of Regional Housing Needs Allocation (“Allocation”) under the California Housing Element Law (Gov. Code § 65580 et seq.) The litigation resulted from the City’s alleged violation of the Housing Element Law due to a combination of a lack of effort on the part of the City to fulfill housing policies that were mandated by state law, and the practical effects of a voter-approved “Housing Cap.”
In 1996, the voters approved the “Housing Cap” initiative, which amended the City’s general plan to provide that the City maintain a maximum housing buildout and permits, and which provided that a vote of the people was needed to amend the Housing Cap. Meanwhile, the City’s share of Allocation of low and moderate housing was established by the Association of Bay Area Governments. Then, in 2003, the City belatedly enacted its housing element, which recognized: 1) that the City would fall 871 units short of high-density, lower income housing; and 2) that 30 to 40 acres of land needed to be redesignated from non-residential use to high-density residential no later than June 2004. This action date continued to slide until the City announced in January 2007 that the rezoning would not be completed until December 2007 or later.
For years the City asserted that the number of units that could permissibly be built under the Housing Cap was sufficient to meet its Allocation. However, in April 2006, the City Manager wrote a memorandum to the City Council that stated that the City’s unmet portion of its Allocation was 2,889 units. The lawsuit was brought on the ground that, under the Housing Cap, the remaining residential potential was only 1,686 units, and therefore the City allegedly could not meets its Allocation. As alleged in the Complaint, the Housing Cap “poses an immediate regulatory barrier to the construction of new affordable housing,” which prevents the City from meeting its statutorily mandated Allocation. Furthermore, the 2003 Housing Element contained a provision that allowed the City Council to override the annual housing allocations of the Growth Management Ordinance in order to grant approvals to projects so the City could meet its Allocation requirements. But the City Council never did that. The complaint alleged that the City concealed the conflict between those ordinances and the Allocation until the April 2006 memorandum. Thus, the failure to provide state-mandated low income housing was the result of both the voter-approved initiative and the lack of political will on the part of the City to complete the rezoning.
In its decision in Urban Habitat, the Court of Appeal addressed a dispute between the petitioners and the City regarding the applicable notice and statute of limitations provisions that applied to this lawsuit. The Court initially held that, under Government Code section 65009, subdivision (d), a party bringing an action under a variety of land use planning statutes in order to encourage the development of low-income housing has 90 days from the date a legislative action is taken or approval is given to notify the local land use authority of any claimed deficiencies in such action or approval. That party then has 60 days after that notice is given within which to file a lawsuit.
However, many of the claims in the complaint in Urban Habitat did not challenge any “action or approval” that was taken by the City. Petitioners complained that, with the passage of time, the City’s Housing Cap and Growth Management Ordinance came into conflict with the City’s obligations under state law to meet the Allocation requirements. Petitioners’ claims challenged a local government’s decision based on events that occurred after that decision took place and, therefore could not have been brought during the statutory time limits governed by section 65009. In Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, the Supreme Court held that a challenge to an ordinance claiming it is preempted by state law are not governed by section 65009. Those challenges are subject to the three year statue of limitations in Code of Civil Procedure section 338, subdivision (a), for “[a]n action upon a liability created by statute, other than a penalty or forfeiture.” The Urban Habitat court took the next step. The Court of Appeal held that section 338, subdivision (a), also applies where a local ordinance conflicts with statutory or constitutional provisions already in effect when the ordinance is adopted. Many of the petitioners’ claims in Urban Habitat fell under that rule because they did not attack a specific land use planning decision but, rather, relate to events that occurred after that decision. In other words, a violation of a state housing element law can, in many circumstances, be brought well after enactment of a land use policy or regulation.
In addition to clarifying those statute of limitations issues, the Urban Habitat case exemplifies the litigation that can arise when a voter-approved initiative thwarts a local jurisdiction’s obligations under state law to allow construction of low and moderate income housing. (See e.g., Building Industry Assoc. of San Diego, Inc. v. City of Oceanside (1994) 27 Cal.App.4th 744, [held, local initiative impeded “the important state policy” in the Government Code to promote the construction of low income housing, and local jurisdiction’s attempt to lessen the harshness of that impediment was insufficient.]) Local officials should always give careful attention to the practical impact that a slow or no-growth initiative has on a local jurisdiction’s statutory obligation to provide low income housing. The Urban Habitat case demonstrates that such attention is warranted not only during the political process when the initiative is being considered by the voters, but also many years after the initiative is enacted.
Glen Hansen is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.