The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the Department of Housing and Community Development to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene.

This bill would permit both the department and the office of the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of the specified housing laws described above, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the Department of Housing and Community Development to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene.

This bill would permit both the department and the office of the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of the specified housing laws described above, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the Department of Housing and Community Development to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene.

This bill would permit both the department and the office of the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of the specified housing laws described above, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the department Department of Housing and Community Development to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene.

The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for the physical development of the county or city and requires that general plan to include, among other mandatory elements, a housing element. Existing law authorizes the department to notify the office of the Attorney General, that a city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to the housing element does not substantially comply with specified provisions of the Planning and Zoning Law, or that the local government has taken action or failed to act in violation of specified provisions of law relating to housing, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

Existing law provides that an intervention takes place when a nonparty becomes a party to an action or proceeding between other persons by, among other things, joining a plaintiff in claiming what is sought by the complaint. Existing law requires the court to permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene.

This bill would permit the Office of the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of the housing laws for which the department may notify the office of the Attorney General that a city, county, or city and county has violated, as described above.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1485

Author:(Haney)

As Amended Ver:September 8, 2023

Majority vote

SUMMARY

Grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (OAG) the unconditional right to intervene in any suit brought to enforce specified housing laws.

Senate Amendments

Move the contents of this bill to a stand-alone section to avoid chaptering issues with other bills.

COMMENTS

Enforcement of State Housing Laws: California has a multi-million unit deficit of housing. This mismatch of supply and demand has resulted in our longstanding housing crisis: home prices that are double the national average, a majority of renters sacrificing basic needs like food and health care to pay for housing, and homelessness that exceeds 170,000 unhoused Californians.

In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a "paper exercise" because the state lacked strong enforcement tools to ensure compliance.

However, in 2017, AB 72 (Santiago), Chapter 370, Statutes of 2017, established a process for HCD to enforce state housing laws. AB 72 requires HCD to notify a local government, and allows HCD to notify the OAG, if HCD finds that a local government's housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws. AB 72 currently covers violations of the following statutes:

1. Four statutes to streamline both market-rate and affordable housing: state Density Bonus Law; SB 35 (Wiener), Chapter 366, Statutes of 2017), AB 2162 (Chiu), Chapter 753, Statutes of 2017), AB 101 (Chapter 159, Statutes of 2019), and AB 2011 (Wicks), Chapter 647, Statutes of 2022).
2. Statutes to create more certainty for development: the Housing Accountability Act; SB 330 (Skinner), Chapter 654, Statutes of 2019, which, among other provisions, locks in the development rules at the time of application and creates demolition protections for existing housing; SB 478 (Wiener), Chapter 363, Statutes of 2021), which established minimum floor-area ratios for smaller housing development projects; and AB 2097 (Friedman), Chapter 459, Statutes of 2022, which removed the ability for local governments to require parking near transit.
3. Statutes that direct local government actions and behaviors: fair housing and antidiscrimination laws; "no net loss" policy for implementing housing elements; the requirement for local governments to submit Annual Progress Reports regarding implementation of housing elements; and AB 686 (Santiago, Chapter 958, Statutes of 2018), which requires local governments to affirmatively further fair housing.

AB 434 (Grayson) of the current legislative session proposes to add eight new statutes to the list of statutes HCD and the OAG must enforce, including laws that streamline approvals of ADUs, require ministerial approval of certain lot and parcel splits, create the Middle Class Housing Act of 2022, and prohibit local governments from conducting more than five public hearings for a project that meets certain standards. Additionally, SB 450 (Atkins) of the current session would add the provisions of SB 9 (Atkins), Chapter 162, Statutes of 2021 governing urban lot splits and certain ministerial housing approvals to the list.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit, which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the OAG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for third party actors – developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

Role of the OAG in Enforcement: Currently, the OAG enforces state housing and development laws both in the OAG's independent capacity and on behalf of client agencies, including HCD. In 2022 Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the OAG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/OAG must use the process outlined in Code of Civil Procedure Section 387 to petition the court to be granted intervenor status and join a suit. In essence, HCD/OAG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The OAG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/OAG seeks to represent the people of California's interest in private lawsuits that raise issues of statewide concern.

Given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court. As an example of a current suit where HCD and OAG sought intervenor status, OAG provided information regarding the timeline of their petition in the case of Grandma's House of Hope v. City of Anaheim, a fair housing case involving a supportive housing project for low-income women with mental health conditions. Essentially, in this action, HCD/OAG and the existing plaintiff and defendant were forced to wait approximately six months from their initial request to intervene before the departments even received a ruling on whether or not the court would grant intervention.

Under this bill, HCD/OAG would have the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or the parties would simply stipulate to HCD/OAG joining the case as a matter of statutory right. This would strengthen the state's ability to enforce housing laws and ensure that the state's interests are heard as a matter of right in private litigation dealing with the application of those laws. This bill should lessen delays, provide for judicial efficiency, and resolve housing issues in a timelier manner.

According to the Author

"Over the last few years the California Legislature has made responding to the State's housing crisis a top priority. Numerous laws requiring local governments to follow the State's affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State's ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases."

Arguments in Support

According to California Attorney General Rob Bonta and the Housing Action Coalition, the bill's cosponsors, this bill will grant OAG a statutory right to intervene similar to what already exists for the OAG for other areas of law, including environmental cases affecting the public. They further argue this bill will strengthen the OAG's ability to hold housing law violators accountable and ensure the state's interests are more efficiently represented in privately filed cases challenging local land use planning and permitting decisions.

Arguments in Opposition

According to the South Bay Cities Council of Governments, "Authorizing the Attorney General and HCD an unconditional right to insert themselves into housing law cases will not bring down housing costs for Californians. However, working with cities to develop policies that respect local control and the wide-ranging needs of differing communities throughout the state could."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, minor and absorbable costs to HCD and OAG.

VOTES:

ASM HOUSING AND COMMUNITY DEVELOPMENT: 6-1-1

YES: Wicks, Wendy Carrillo, Gabriel, Kalra, Quirk-Silva, Ward

NO: Sanchez

ABS, ABST OR NV: Joe Patterson

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 12-3-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis

ASSEMBLY FLOOR: 56-16-8

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Mike Fong, Friedman, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie‑Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Lackey, Mathis, Jim Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Boerner, Calderon, Connolly, Gabriel, Hoover, Irwin, Muratsuchi, Joe Patterson

UPDATED

VERSION: September 8, 2023

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0002424

 THIRD READING  

Bill No: AB 1485

Author: Haney (D), et al.

Amended: 9/8/23 in Senate

Vote: 21

SENATE HOUSING COMMITTEE: 9-2, 6/20/23

AYES: Wiener, Blakespear, Caballero, Cortese, McGuire, Padilla, Skinner, Umberg, Wahab

NOES: Ochoa Bogh, Seyarto

SENATE JUDICIARY COMMITTEE: 9-2, 7/6/23

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 56-16, 6/1/23 - See last page for vote

SUBJECT: Housing element: enforcement: Attorney General

SOURCE: State of California Attorney General

Housing Action Coalition

DIGEST:

This bill grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (AG) the unconditional right to intervene in any suit brought to enforce specified housing laws.

Senate Floor Amendments of 9/8/23 move the contents of the bill to a stand-alone section to avoid chaptering issues with other bills.

ANALYSIS:

Existing law:

1. Establishes Housing Element law, which provides that each city and county’s fair share of housing is to be determined through the regional housing needs allocation process.
2. Requires HCD to notify a local government, and allows HCD to notify the AG, if HCD finds that:
   1. A housing element does not substantially comply with state law; and
   2. Any local government has taken an action in violation of specified laws.
3. Authorizes the AG to seek all remedies available under law to enforce state law in an independent capacity.
4. Specifies that an intervention in a civil action takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
   1. Joining a plaintiff in claiming what is sought by the complaint;
   2. Uniting with a defendant in resisting the claims of a plaintiff; or
   3. Demanding anything adverse to both a plaintiff and a defendant.
5. Requires a nonparty to petition the court for leave to intervene by noticed motion or ex parte application. Requires the petition to include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.
6. Requires a court, upon timely application, to permit a nonparty to intervene in an action or proceeding if either of the following conditions is satisfied:
   1. A provision of law confers an unconditional right to intervene; or
   2. The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.
7. Authorizes a court, upon timely application, to permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.

This bill:

1. Grants HCD and the AG the unconditional right to intervene in any suit brought to enforce any of the following state laws, as specified:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Grants the AG this unconditional right whether intervening in an independent capacity or pursuant to a notice or referral from HCD.

Background

Enforcement of State Housing Laws. In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a “paper exercise” because the state lacked strong enforcement tools to ensure compliance.

AB 72 (Santiago, Chapter 370, Statutes of 2017) established a process for HCD to enforce state housing laws. AB 72 required HCD to notify a local government, and allowed HCD to notify the AG, if HCD finds that a local government’s housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit (HAU), which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the AG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for private third party actors – for example, developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

Comments

Role of the AG in Enforcement. Currently, the AG enforces state housing and development laws both in the AG’s independent capacity and on behalf of client agencies, including HCD. In 2022, Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the AG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/AG must use a specified process to petition the court to be granted intervenor status and join a suit. In essence, HCD/AG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The AG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/AG seeks to represent the people of California’s interest in private lawsuits that raise issues of statewide concern.

The AG further notes that given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court.

This bill grants HCD and the AG the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or, more likely, the parties would simply stipulate to HCD/AG joining the case as a matter of statutory right. This will strengthen the state’s ability to enforce housing laws and ensure that the state’s interests are heard as a matter of right in private litigation dealing with the application of those laws.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/14/23)

State of California Attorney General (co-source)

Housing Action Coalition (co-source)

Abundant Housing LA

Bay Area Council

BuildCasa

California Apartment Association

California Community Builders

California Housing Partnership Corporation

California YIMBY

Circulate San Diego

CivicWell

Council of Infill Builders

East Bay YIMBY

Eden Housing

Fieldstead and Company, Inc.

Greenbelt Alliance

Grow the Richmond

How To ADU

MidPen Housing

Mountain View YIMBY

Napa-Solano for Everyone

National Association of Hispanic Real Estate Professionals

Northern Neighbors SF

Peninsula for Everyone

People for Housing - Orange County

Progress Noe Valley

San Francisco Bay Area Planning and Urban Research Association

San Francisco YIMBY

Sand Hill Property Company

Santa Cruz YIMBY

Santa Rosa YIMBY

Silicon Valley @ Home

Silicon Valley Leadership Group

SLO YIMBY

South Bay YIMBY

Southside Forward

Ventura County YIMBY

YIMBY Action

OPPOSITION: (Verified 8/14/23)

Association of California Cities – Orange County

Marin County Council of Mayors & Councilmembers

ARGUMENTS IN SUPPORT: According to the author, “Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.”

ARGUMENTS IN OPPOSITION: The Association of California Cities – Orange County is opposed because this bill “pursues a contentious and litigious approach to housing.” The Marin County Council of Mayors & Councilmembers is opposed because this bill “imposes a top-down enforcement mechanism” and removes judicial discretion.

ASSEMBLY FLOOR: 56-16, 6/1/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Mike Fong, Friedman, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Lackey, Mathis, Jim Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Boerner, Calderon, Connolly, Gabriel, Hoover, Irwin, Muratsuchi, Joe Patterson

Prepared by: Alison Hughes / HOUSING / (916) 651-4124

9/11/23 12:52:43

**** END ****

 THIRD READING  

Bill No: AB 1485

Author: Haney (D), et al.

Amended: 3/28/23 in Assembly

Vote: 21

SENATE HOUSING COMMITTEE: 9-2, 6/20/23

AYES: Wiener, Blakespear, Caballero, Cortese, McGuire, Padilla, Skinner, Umberg, Wahab

NOES: Ochoa Bogh, Seyarto

SENATE JUDICIARY COMMITTEE: 9-2, 7/6/23

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 56-16, 6/1/23 - See last page for vote

SUBJECT: Housing element: enforcement: Attorney General

SOURCE: State of California Attorney General

Housing Action Coalition

DIGEST:

This bill grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (AG) the unconditional right to intervene in any suit brought to enforce specified housing laws.

ANALYSIS:

Existing law:

1. Establishes Housing Element law, which provides that each city and county’s fair share of housing is to be determined through the regional housing needs allocation process.
2. Requires HCD to notify a local government, and allows HCD to notify the AG, if HCD finds that:
   1. A housing element does not substantially comply with state law; and
   2. Any local government has taken an action in violation of specified laws.
3. Authorizes the AG to seek all remedies available under law to enforce state law in an independent capacity.
4. Specifies that an intervention in a civil action takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
   1. Joining a plaintiff in claiming what is sought by the complaint;
   2. Uniting with a defendant in resisting the claims of a plaintiff; or
   3. Demanding anything adverse to both a plaintiff and a defendant.
5. Requires a nonparty to petition the court for leave to intervene by noticed motion or ex parte application. Requires the petition to include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.
6. Requires a court, upon timely application, to permit a nonparty to intervene in an action or proceeding if either of the following conditions is satisfied:
   1. A provision of law confers an unconditional right to intervene; or
   2. The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.
7. Authorizes a court, upon timely application, to permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.

This bill:

1. Grants HCD and the AG the unconditional right to intervene in any suit brought to enforce any of the following state laws, as specified:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Grants the AG this unconditional right whether intervening in an independent capacity or pursuant to a notice or referral from HCD.

Background

Enforcement of State Housing Laws. In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a “paper exercise” because the state lacked strong enforcement tools to ensure compliance.

AB 72 (Santiago, Chapter 370, Statutes of 2017) established a process for HCD to enforce state housing laws. AB 72 required HCD to notify a local government, and allowed HCD to notify the AG, if HCD finds that a local government’s housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit (HAU), which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the AG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for private third party actors – for example, developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

Comments

Role of the AG in Enforcement. Currently, the AG enforces state housing and development laws both in the AG’s independent capacity and on behalf of client agencies, including HCD. In 2022, Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the AG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/AG must use a specified process to petition the court to be granted intervenor status and join a suit. In essence, HCD/AG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The AG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/AG seeks to represent the people of California’s interest in private lawsuits that raise issues of statewide concern.

The AG further notes that given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court.

This bill grants HCD and the AG the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or, more likely, the parties would simply stipulate to HCD/AG joining the case as a matter of statutory right. This will strengthen the state’s ability to enforce housing laws and ensure that the state’s interests are heard as a matter of right in private litigation dealing with the application of those laws.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/14/23)

State of California Attorney General (co-source)

Housing Action Coalition (co-source)

Abundant Housing LA

Bay Area Council

BuildCasa

California Apartment Association

California Community Builders

California Housing Partnership Corporation

California YIMBY

Circulate San Diego

CivicWell

Council of Infill Builders

East Bay YIMBY

Eden Housing

Fieldstead and Company, Inc.

Greenbelt Alliance

Grow the Richmond

How To ADU

MidPen Housing

Mountain View YIMBY

Napa-Solano for Everyone

National Association of Hispanic Real Estate Professionals

Northern Neighbors SF

Peninsula for Everyone

People for Housing - Orange County

Progress Noe Valley

San Francisco Bay Area Planning and Urban Research Association

San Francisco YIMBY

Sand Hill Property Company

Santa Cruz YIMBY

Santa Rosa YIMBY

Silicon Valley @ Home

Silicon Valley Leadership Group

SLO YIMBY

South Bay YIMBY

Southside Forward

Ventura County YIMBY

YIMBY Action

OPPOSITION: (Verified 8/14/23)

Association of California Cities – Orange County

Marin County Council of Mayors & Councilmembers

ARGUMENTS IN SUPPORT: According to the author, “Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.”

ARGUMENTS IN OPPOSITION: The Association of California Cities – Orange County is opposed because this bill “pursues a contentious and litigious approach to housing.” The Marin County Council of Mayors & Councilmembers is opposed because this bill “imposes a top-down enforcement mechanism” and removes judicial discretion.

ASSEMBLY FLOOR: 56-16, 6/1/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Mike Fong, Friedman, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Lackey, Mathis, Jim Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Boerner, Calderon, Connolly, Gabriel, Hoover, Irwin, Muratsuchi, Joe Patterson

Prepared by: Alison Hughes / HOUSING / (916) 651-4124

8/16/23 10:24:59

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1485 (Author:Haney)

Version: March 28, 2023

Hearing Date: July 6, 2023

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Housing element: enforcement: Attorney General

DIGEST

Permits the Department of Housing and Community Development (HCD) and the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of specified housing laws, including, among others, the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

EXECUTIVE SUMMARY

The Attorney General and HCD do not have an unconditional statutory right to intervene in third party housing enforcement litigation. Under current law the Attorney General and HCD must show that they have an interest related to the litigation that may be impaired if they are not allowed to intervene. The author and sponsors explain that under the current process it can take several months to a year for a motion to intervene to be considered by a court. The author brings this bill to prevent this delay by allowing HCD and the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of housing laws, including, among others, the Housing Accountability Act, The Density Bonus Law, and the Housing Crisis Act of 2019. Specifically, AB 1485 grants the Attorney General an unconditional, statutory right to intervene in pending third party actions to redress state housing law violations, pursuant to California Code of Civil Procedure Section 387(d)(1)(A).

This bill is sponsored by Attorney General Rob Bonta and supported by the California Apartment Association and numerous organizations that work to increase affordable housing. The bill is opposed by the Association of California Cities- Orange County, Catalysts for Local Control, and the San Rafael/Marin County Council of Mayors and Council Members. The bill passed the Senate Housing Committee with a 9 to 2 vote.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Requires the local planning agency of all local governments to prepare, and the legislative body of each county and city to adopt, a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency’s judgment bears relation to its planning. (Gov. Code § 65300.)
2. Requires a General Plan to consist of a statement of development policies and include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals for each of the following elements:
   1. Land use;
   2. Circulation;
   3. Housing;
   4. Conservation;
   5. Open space;
   6. Noise;
   7. Safety; and
   8. Environmental justice. (Gov. Code § 65302.)
3. Requires the Housing Element of a General Plan to consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing, as well as identifying adequate sites for housing, including rental housing, factory-built housing, mobilehomes, and emergency shelters, and make adequate provision for the existing and projected needs of all economic segments of the community. (Gov. Code § 65583.)
4. Establishes a list of housing laws that HCD is required to notify a local government, and allows HCD to notify the office of the Attorney General, if HCD finds that the local agency is in violation of the housing law. (Gov. Code § 65585 (j).)
5. Authorizes the Attorney General to enforce various housing laws in its independent capacity. (Gov. Code § 65585 (n).)
6. Permits all persons to join an action as plaintiffs if:
   1. they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or
   2. they have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action. (Civ. Proc. Code § 378.)
7. Provides that persons may be joined in one action as defendants if there is asserted against them:
   1. any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or
   2. a claim, right, or interest adverse to them in the property or controversy which is the subject of the action. (Civ. Proc. Code § 379.)
8. Permits a nonparty to petition the court for leave to intervene by noticed motion or ex parte application to set forth the grounds upon which the intervention rests. (Civ. Proc. Code § 387 (c).)
9. Requires the court to permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
   1. a provision of law confers an unconditional right to intervene; or
   2. the person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. (Civ. Proc. Code § 387 (d).)
10. Requires an intervening party, upon receiving the permission of the court to intervene to do the following:
    1. separately file the complaint in intervention, answer in intervention, or both; and
    2. serve a copy of the order, or notice of the court’s decision or order, granting leave to intervene and the pleadings in intervention, as specified. (Civ. Proc. Code § 387 (e).)

This bill:

1. Provides the HCD and the Attorney General an unconditional right to intervene in any suit brought to enforce any of the following state laws:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified in Government Code Section 8899.50;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Provides that the Attorney General’s right to intervene is independent of any request, notice, or referral from HCD.

COMMENTS

1. Stated need for the bill

According to the author:

Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government.

Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.

The California Apartment Association, in support, writes:

Most of California’s state housing laws include a private right of action allowing third parties to file lawsuits to enforce state housing laws and to challenge local land use and planning decisions. However, if a third-party files the lawsuit first, the Attorney General may only get involved in the case by formally petitioning the court for permission to intervene. This procedural hurdle causes unnecessary delay as courts may take months to schedule a hearing on the petition. AB 1485 would strengthen enforcement of state housing law by ensuring that both the Attorney General and HCD are able to timely represent the state’s interests in pending actions filed by third parties to redress violations of state housing laws.

In support, the California Home Building Alliance, writes:

Most of California’s state housing laws include a private right of action, allowing third parties, like developers and housing advocacy organizations, to file lawsuits independent of HCD or AG action. When a third party is the first to take action, the AG has to petition the court to intervene in the case. The process of intervening can take six months to a year, and on at least one occasion, a court has denied the AG’s application to intervene.

A statutory right to intervene would give the AG an unconditional right to join lawsuits to enforce state housing law. The AG already has a statutory right to intervene in other contexts, including when a state statute or regulation has been declared unconstitutional by a court, and in environmental cases affecting the public generally.

This is a straightforward solution to an issue that impacts the AG’s ability to intervene and represent the State’s interests in housing cases.

As explained by the Assembly Judiciary Committee in their analysis of this bill:

General Plan Law has required local governments to identify the amount of housing needed in the jurisdiction to keep pace with growth and then to subsequently identify areas within the jurisdiction where housing can be constructed. To assist local governments meet these goals, the state has passed an array of pro-housing laws, including the density bonus law, fair housing laws, supportive housing laws, and permit streamlining laws. However, these state-level efforts have not been sufficient to overcome local inaction and opposition to new development. As a result, as highlighted by a recent report by the state Department of Housing and Community Development, the state needs to produce approximately 2.5 million housing units over the next eight years, with roughly one million of those units being set aside for lower income households, in order for the state to meet the anticipated demand for housing over the same time period. (Dept. of Housing and Community Development, California Statewide Housing Plan: A Home for Every Californian (Mar. 2022)[…]

Seeking to close this gap, in recent years the Legislature has started taking steps to force local governments to build more housing. In 2017, the Legislature enacted AB 72 (Santiago) Chap. 370, Stats. 2017, which established a process for the Department of Housing and Community Development to enforce state housing laws against non-compliant local governments. Further, in 2019, the Legislature passed the Housing Crisis Act of 2019 (SB 330 (Skinner) Chap. 654, Stats. 2019), which limited certain actions local agencies were using to avoid producing housing. Several other recent measures have also sought to force local agencies to build housing by deeming certain developments “by right” which limits the ability for local agencies to deny development permits. Nonetheless, as California’s housing deficits worsen, additional state-level tools are necessary to ensure proper compliance with the law.

3. Under current law it can take months for the Attorney General and HCD to intervene in third party housing enforcement litigation

The Attorney General and HCD do not have an unconditional statutory right to intervene in third party housing enforcement litigation. Under current law the Attorney General and HCD must show that they have an interest related to the litigation that may be impaired if they are not allowed to intervene. The author and sponsors explain that under the current process it can take several months to a year for a motion to intervene to be considered by a court. They provide the following example of a timeline in a fair housing case that involves securing supportive housing for low-income women with mental health issues where the Attorney General seeks to intervene:

1. Grandma’s House of Hope v. City of Anaheim case filed: January, 19, 2022

2. HCD’s initial ex parte application to intervene: October 3, 2022

3. HCD’s motion for leave to intervene filed: October 20, 2022- for a hearing on April 4, 2023. (6 months)

4. The presiding judge recused himself on November 14, 2022.

5. HCD had to re-file its motion on November 15, 2022 for a hearing scheduled for February 3, 2023.

6. The week of the February 3, 2023 hearing, a second presiding judge recused himself.

7. The matter was transferred to a third courtroom that scheduled a hearing for the motion on April 18, 2023.

8. On April 17, 2023, the Court issued a tentative ruling initially denying HCD's motion for leave to intervene on grounds that the statute does not grant the Attorney General the right to represent HCD in an enforcement action under the relevant enforcement statute. This issue was not briefed by either party, and was raised sua sponte by the Court.

9. On April 18, 2023, the Court held an initial hearing on HCD's motion for leave to intervene. HCD argued that the Court's tentative ruling failed to fully consider all provisions of the operative enforcement statute which, read together, does allow the Attorney General to intervene as counsel for HCD. Acknowledging that the issue was not briefed by either party, the Court allowed for the parties to submit supplemental briefing on the issue and continued the hearing to May 18, 2023.

10. On May 18, 2023, the Court granted HCD's motion for leave to intervene.

11. On May 23, 2023, HCD filed its Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief.

12. A merits hearing is scheduled for November 7, 2023.

The author explains:

Essentially, in this action, it took over 7 months from HCD/AGO’s initial request to intervene for the court to rule on whether it would grant the intervention.

Were HCD/AGO to have the statutory right to intervene in matters to enforce housing laws, it could simply file an ex parte application or uncontested motion seeking leave or, more likely, the parties would simply stipulate to HCD/AGO joining the case as a matter of statutory right. This would have avoided a delay of over 7 months in the case.

The author brings this bill to prevent much of the delay in the process delineated above. The bill would do so by allowing HCD and the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of housing laws, including, among others, the Housing Accountability Act, The Density Bonus Law, and the Housing Crisis Act of 2019. Specifically, AB 1485 grants the Attorney General an unconditional, statutory right to intervene in pending third party actions to redress state housing law violations, pursuant to California Code of Civil Procedure Section 387(d)(1)(A).

4. Opposition

The Association of California Cities – Orange County writes the following in opposition:

This bill would allow both the Department of Housing and Community Development as well as the Attorney General to intervene as a matter of unconditional right in any legal action addressing a violation of specified housing laws including the Housing Accountability Act, the Density Bonus Law, and the Housing Crisis Act of 2019.

ACC-OC believes that the production of housing is best advanced through a partnership between the State and local agencies that includes support, resources, and reforms to meet our shared housing goals. Unfortunately this is not the approach taken in AB 1485, which instead pursues a contentious and litigious approach to housing.

SUPPORT

Attorney General Rob Bonta (sponsor)
Housing Action Coalition (sponsor)
Abundant Housing LA

Bay Area Council

BuildCasa

California Apartment Association

California Community Builders

California Housing Partnership

California YIMBY

Circulate San Diego

Civic Well

Council of Infill Builders

East Bay YIMBY

Eden Housing

Fieldstead and Company, INC.

Greenbelt Alliance

Grow the Richmond

How to ADU

Midpen Housing

Mountain View YIMBY

Napa-Solano for Everyone

National Association of Hispanic Real Estate Professionals (NAHREP)

Northern Neighbors SF

Peninsula for Everyone

People for Housing - Orange County

Progress Noe Valley

San Francisco Bay Area Planning and Urban Research Association (SPUR)

San Francisco YIMBY

Sand Hill Property Company

Santa Cruz YIMBY

Santa Rosa YIMBY

Silicon Valley @ Home

Silicon Valley Leadership Group

SloCo YIMBY

South Bay YIMBY

Southside Forward

SPUR

Ventura County YIMBY

YIMBY Action

OPPOSITION

Association of California Cities- Orange County

Catalysts for Local Control

Marin County Council of Mayors and Council Members

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 215 (Chiu, Ch. 342, Stats. 2021) provided HCD with additional enforcement authority for local agency violations of specified housing laws, and increased public review for housing elements.

AB 72 (Santiago, Ch. 370, Stats. 2017) gave HCD authority to find a city's, county's, or city's and county's housing element out of substantial compliance if it determines that the city, county, or city and county acts or fails to act in compliance with its housing element, and allowed HCD to refer violations of law to the Attorney General.

PRIOR VOTES:

Senate Housing Committee (Ayes 9, Noes 2)

Assembly Floor (Ayes 56, Noes 16)

Assembly Appropriations Committee (Ayes 12, Noes 3)

Assembly Judiciary Committee (Ayes 8, Noes 3)

Assembly Housing and Community Development Committee (Ayes 6, Noes 1)

**************

SENATE COMMITTEE ON HOUSING

Senator Scott Wiener, Chair

2023 - 2024 Regular

Bill No: AB 1485 Hearing Date: 6/20/2023

SUBJECT: Housing element: enforcement: Attorney General

DIGEST: This bill grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (AG) the unconditional right to intervene in any suit brought to enforce specified housing laws.

ANALYSIS:

Existing law:

1. Establishes Housing Element law, which provides that each city and county’s fair share of housing is to be determined through the regional housing needs allocation process.
2. Requires HCD to notify a local government, and allows HCD to notify the office of the Attorney General, if HCD finds that:
   1. A housing element does not substantially comply with state law; and
   2. Any local government has taken an action in violation of specified laws.
3. Authorizes the AG to seek all remedies available under law to enforce state law in an independent capacity.
4. Specifies that an intervention in a civil action takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
   1. Joining a plaintiff in claiming what is sought by the complaint;
   2. Uniting with a defendant in resisting the claims of a plaintiff; or
   3. Demanding anything adverse to both a plaintiff and a defendant.
5. Requires a nonparty to petition the court for leave to intervene by noticed motion or ex parte application. Requires the petition to include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.
6. Requires a court, upon timely application, to permit a nonparty to intervene in an action or proceeding if either of the following conditions is satisfied:
   1. A provision of law confers an unconditional right to intervene; or
   2. The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.
7. Authorizes a court, upon timely application, to permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.

This bill:

1. Grants HCD and the AG the unconditional right to intervene in any suit brought to enforce any of the following state laws, as specified:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Grants the AG this unconditional right whether intervening in an independent capacity or pursuant to a notice or referral from HCD.

COMMENTS:

1. Author’s statement. “Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.”
2. Enforcement of State Housing Laws. In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a “paper exercise” because the state lacked strong enforcement tools to ensure compliance.

AB 72 (Santiago, Chapter 370, Statutes of 2017) established a process for HCD to enforce state housing laws. AB 72 requires HCD to notify a local government, and allows HCD to notify the AG, if HCD finds that a local government’s housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit (HAU), which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the AG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for private third party actors – for example, developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

1. Role of the AG in Enforcement. Currently, the AG enforces state housing and development laws both in the AG’s independent capacity and on behalf of client agencies, including HCD. In 2022 Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the AG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/AG must use a specified process to petition the court to be granted intervenor status and join a suit. In essence, HCD/AG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The AG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/AG seeks to represent the people of California’s interest in private lawsuits that raise issues of statewide concern.

The AG further notes that given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court.

Under this bill, HCD/AG would have the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or, more likely, the parties would simply stipulate to HCD/AG joining the case as a matter of statutory right. This would strengthen the state’s ability to enforce housing laws and ensure that the state’s interests are heard as a matter of right in private litigation dealing with the application of those laws.

1. Double referral. This bill was also referred to the Senate Judiciary Committee.

Related Legislation:

AB 215 (Chiu, Chapter 342, Statutes of 2021) — provided HCD with additional enforcement authority over local agency violations of specified housing laws.

AB 72 (Santiago, Chapter 370, Statutes of 2017) — gave HCD the authority to find a local government’s housing element out of substantial compliance if it determines that the local government acts or fails to act in compliance with its housing element, and allows HCD to refer violations of law to the Attorney General.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

POSITIONS: (Communicated to the committee before noon on Wednesday,

June 14, 2023.)

SUPPORT:

Housing Action Coalition (Sponsor)

State of California Attorney General (Co-Sponsor)

Abundant Housing LA

Bay Area Council

BuildCasa

California Apartment Association

California Community Builders

California Housing Partnership Corporation

California YIMBY

Circulate San Diego

Civicwell

Council of Infill Builders

East Bay YIMBY

Eden Housing

Fieldstead and Company, INC.

Greenbelt Alliance

Grow the Richmond

How to ADU

Midpen Housing

Mountain View YIMBY

Napa-solano for Everyone

National Association of Hispanic Real Estate Professionals (NAHREP)

Northern Neighbors SF

Peninsula for Everyone

People for Housing - Orange County

Progress Noe Valley

San Francisco Bay Area Planning and Urban Research Association (SPUR)

San Francisco YIMBY

Sand Hill Property Company

Santa Cruz YIMBY

Santa Rosa YIMBY

Silicon Valley @ Home

Silicon Valley Leadership Group

Slo YIMBY

South Bay YIMBY

Southside Forward

Ventura County YIMBY

YIMBY Action

OPPOSITION:

None received.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1485

Author:(Haney)

As Amended Ver:March 28, 2023

Majority vote

SUMMARY

Grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (OAG) the unconditional right to intervene in any suit brought to enforce specified housing laws.

Major Provisions

1. Grants HCD and the OAG the unconditional right to intervene in any suit brought to enforce any of the following state laws:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. "No net loss" policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified in Government Code Section 8899.50;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Grants the OAG this unconditional right whether intervening in an independent capacity or pursuant to a notice or referral from HCD.

COMMENTS

Enforcement of State Housing Laws: California has a multi-million unit deficit of housing. This mismatch of supply and demand has resulted in our longstanding housing crisis: home prices that are double the national average, a majority of renters sacrificing basic needs like food and health care to pay for housing, and homelessness that exceeds 170,000 unhoused Californians.

In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a "paper exercise" because the state lacked strong enforcement tools to ensure compliance.

However, in 2017, AB 72 (Santiago), Chapter 370, Statutes of 2017 established a process for HCD to enforce state housing laws. AB 72 requires HCD to notify a local government, and allows HCD to notify the OAG, if HCD finds that a local government's housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws. AB 72 currently covers violations of the following statutes:

1. Four statutes to streamline both market-rate and affordable housing: state Density Bonus Law; SB 35 (Wiener), Chapter 366, Statutes of 2017, AB 2162 (Chiu), Chapter 753, Statutes of 2018, AB 101 (Committee on Budget), Chapter 159, Statutes of 2019, and AB 2011 (Wicks), Chapter 647, Statutes of 2022.
2. Statutes to create more certainty for development: the Housing Accountability Act; SB 330 (Skinner, Chapter 654, Statutes of 2019), which, among other provisions, locks in the development rules at the time of application and creates demolition protections for existing housing; SB 478 (Wiener), Chapter 363, Statutes of 2021, which established minimum floor-area ratios for smaller housing development projects; and AB 2097 (Friedman), Chapter 459, Statutes of 2022, which removed the ability for local governments to require parking near transit.
3. Statutes that direct local government actions and behaviors: fair housing and antidiscrimination laws; "no net loss" policy for implementing housing elements; the requirement for local governments to submit Annual Progress Reports regarding implementation of housing elements; and AB 686 (Santiago), Chapter 958, Statutes of 2018, which requires local governments to affirmatively further fair housing.

AB 434 (Grayson) of the current legislative session proposes to add eight new statutes to the list of statutes HCD and the OAG must enforce, including laws that streamline approvals of ADUs, require ministerial approval of certain lot and parcel splits, create the Middle Class Housing Act of 2022, and prohibit local governments from conducting more than five public hearings for a project that meets certain standards. Additionally, SB 450 (Atkins) of the current session would add the provisions of SB 9 (Atkins), Chapter 162, Statutes of 2021 governing urban lot splits and certain ministerial housing approvals to the list.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit, which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the OAG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for third party actors – developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

Role of the OAG in Enforcement: Currently, the OAG enforces state housing and development laws both in the OAG's independent capacity and on behalf of client agencies, including HCD. In 2022 Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the OAG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/OAG must use the process outlined in Code of Civil Procedure Section 387 to petition the court to be granted intervenor status and join a suit. In essence, HCD/OAG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The OAG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/OAG seeks to represent the people of California's interest in private lawsuits that raise issues of statewide concern.

Given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court. As an example of a current suit where HCD and OAG sought intervenor status, OAG provided information regarding the timeline of their petition in the case of Grandma's House of Hope v. City of Anaheim, a fair housing case involving a supportive housing project for low-income women with mental health conditions. Essentially, in this action, HCD/OAG and the existing plaintiff and defendant were forced to wait approximately six months from their initial request to intervene before the departments even received a ruling on whether or not the court would grant intervention.

Under this bill, HCD/OAG would have the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or the parties would simply stipulate to HCD/OAG joining the case as a matter of statutory right. This would strengthen the state's ability to enforce housing laws and ensure that the state's interests are heard as a matter of right in private litigation dealing with the application of those laws. This bill should lessen delays, provide for judicial efficiency, and resolve housing issues in a timelier manner.

According to the Author

"Over the last few years the California Legislature has made responding to the State's housing crisis a top priority. Numerous laws requiring local governments to follow the State's affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State's ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases."

Arguments in Support

According to California Attorney General Rob Bonta and the Housing Action Coalition, the bill's cosponsors, this bill will grant OAG a statutory right to intervene similar to what already exists for the OAG for other areas of law, including environmental cases affecting the public. They further argue this bill will strengthen the OAG's ability to hold housing law violators accountable and ensure the state's interests are more efficiently represented in privately filed cases challenging local land use planning and permitting decisions.

Arguments in Opposition

According to the South Bay Cities Council of Governments, "Authorizing the Attorney General and HCD an unconditional right to insert themselves into housing law cases will not bring down housing costs for Californians. However, working with cities to develop policies that respect local control and the wide-ranging needs of differing communities throughout the state could."

FISCAL COMMENTS

According to the Assembly Committee on Appropriations: Minor and absorbable costs to HCD and OAG.

VOTES

ASM HOUSING AND COMMUNITY DEVELOPMENT: 6-1-1

YES: Wicks, Wendy Carrillo, Gabriel, Kalra, Quirk-Silva, Ward

NO: Sanchez

ABS, ABST OR NV: Joe Patterson

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 12-3-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis

UPDATED

VERSION: March 28, 2023

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0000362

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1485

Author:(Haney) – As Amended Ver:March 28, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill grants the Department of Housing and Community Development (HCD) and the Attorney General (AG) an unconditional right to intervene in various civil actions related to the enforcement of state housing law.

Specifically, this bill:

1. Provides HCD and the AG an unconditional right to intervene in any legal action brought to enforce any of the following state laws:
   1. Housing Element Law.
   2. The Housing Accountability Act.
   3. “No net loss” policy for implementing housing elements, as specified.
   4. Density bonus law.
   5. Fair housing law, as specified.
   6. The Housing Crisis Act of 2019.
   7. The obligation to affirmatively further fair housing as specified in Government Code (GC) Section 8899.50.
   8. Housing streamlining laws, as specified.
   9. Supportive housing streamlining laws.
   10. Low-barrier navigation center streamlining laws.
   11. Laws related to floor area ratio standards, as specified.
   12. The requirement to submit an annual progress report regarding implementation of local housing elements.
   13. Laws related to the enforcement of minimum parking requirements on certain developments.
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Provides that the Attorney General’s right to intervene is independent of any request, notice, or referral from HCD.

FISCAL EFFECT:

Minor and absorbable costs to HCD and the AG.

COMMENTS:

1. Purpose. The author of this bill seeks to strengthen the ability of state regulators, specifically HCD and the AG, to intervene in lawsuits seeking to enforce state housing laws. According to the author:

Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.

1. Background. According to HCD, the state needs to produce approximately 2.5 million housing units over the next eight years, with roughly one million of those units being set aside for lower income households, for the state to meet the anticipated demand for housing over the same time period. In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating streamlined, ministerial processes for approval of housing and requiring local governments to plan and zone for more housing via the housing element process.

In addition, AB 72 (Santiago), Chapter 370, Statutes of 2017, requires HCD to notify a local government, and allows HCD to notify the AG, if HCD finds a local government’s housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws. HCD has also established a Housing Accountability Unit (HAU) which, among other duties, provides education and technical assistance to local agencies to help ensure their compliance with state housing laws.

The AG enforces state housing and development laws both in the AG’s independent capacity and on behalf of client agencies, including HCD. In 2022 Attorney General Bonta created a Housing Strike Force within the Department of Justice to work with state agencies and partners to enforce statewide housing laws.

While HCD and the AG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD and the AG must petition the court to be granted intervener status and join a suit. This can be a lengthy and onerous process. This bill grants HCD and the AG an unconditional right to intervene in lawsuits arising under 14 different state housing laws. The bill permits the AG to act independently of HCD and seek intervention without requiring HCD to request such an action.

1. Related Legislation. AB 434 (Grayson) adds several additional housing laws to the list of laws that HCD must enforce. AB 434 is pending in this committee.

SB 450 (Atkins) among other things, adds the provisions of SB 9 to the list of laws HCD must enforce. SB 450 is pending in the Senate Appropriations Committee.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 1485

Author:(Haney) – As Amended Ver:March 28, 2023

SUBJECT: Housing element: enforcement: Attorney General

KEY ISSUE: should the attorney general and the department of housing and community development be granted an unconditional right to intervene in specified housing law cases?

SYNOPSIS

According to the Department of Housing and Community Development, California needs to produce approximately 2.5 million housing units over the next eight years to keep up with demand. However, despite the Legislature providing several new tools to spur development, the author argues that too many local agencies are failing to comply with state housing laws and the housing development targets the localities have set for themselves. In recent years, new legislation has also strengthened the ability of the Department of Housing and Community Development and the Attorney General to take legal action against local governments that fail to comply with housing law. This straightforward bill provides to provide the state with a new tool to increase housing development by granting the Department of Housing and Community Development and the Attorney General an unconditional right to intervene in litigation brought by third parties to enforce state housing laws.

This bill is sponsored by Attorney General Rob Bonta and is supported by a broad coalition of housing advocates. The proponents note that the current intervention process results in litigation delays, which ultimately defer the ultimate decision in a housing law case. This measure is opposed by the organization Catalysts for Local Control, who appear to argue that the Department of Housing and Community Development’s current process for evaluating compliance with state housing laws is inadequate. The bill was previously heard and approved by the Committee on Housing and Community Development by a vote of six to one.

SUMMARY: Grants the Department of Housing and Community Development and the Attorney General an unconditional right to intervene in various civil actions related to the enforcement of state housing law. Specifically, this bill:

1. Provides the Department of Housing and Community Development and the Attorney General an unconditional right to intervene in any suit brought to enforce any of the following state laws:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified in GC Section 8899.50;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Provides that the Attorney General’s right to intervene is independent of any request, notice, or referral from the Department of Housing and Community Development.

EXISTING LAW:

1. Requires the local planning agency of all local governments to prepare, and the legislative body of each county and city to adopt, a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency’s judgment bears relation to its planning. (Government Code Section 65300.)
2. Requires a General Plan to consist of a statement of development policies and include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals for each of the following elements:
   1. Land use;
   2. Circulation;
   3. Housing;
   4. Conservation;
   5. Open space;
   6. Noise;
   7. Safety; and
   8. Environmental justice. (Government Code Section 65302.)
3. Requires the Housing Element of a General Plan to consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing, as well as identifying adequate sites for housing, including rental housing, factory-built housing, mobilehomes, and emergency shelters, and make adequate provision for the existing and projected needs of all economic segments of the community. (Government Code Section 65583.)
4. Establishes a list of housing laws that the Department of Housing and Community Development is required to notify a local government, and allows the Department to notify the office of the Attorney General, if the Department finds that the local agency is in violation of the housing law. (Government Code Section 65585 (j).)
5. Authorizes the Attorney General to enforce various housing law in its independent capacity. (Government Code Section 65585 (n).)
6. Permits all persons to join an action as plaintiffs if:
   1. They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or
   2. They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action. (Code of Civil Procedure Section 378.)
7. Provides that persons may be joined in one action as defendants if there is asserted against them:
   1. Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or
   2. A claim, right, or interest adverse to them in the property or controversy which is the subject of the action. (Code of Civil Procedure Section 379.)
8. Permits a nonparty to petition the court for leave to intervene by noticed motion or ex parte application to set forth the grounds upon which the intervention rests. (Code of Civil Procedure Section 387 (c).)
9. Requires the court to permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
   1. A provision of law confers an unconditional right to intervene; or
   2. The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. (Code of Civil Procedure Section 387 (d).)
10. Requires an intervening party, upon receiving the permission of the court to intervene to do the following:
    1. Separately file the complaint in intervention, answer in intervention, or both; and
    2. Serve a copy of the order, or notice of the court’s decision or order, granting leave to intervene and the pleadings in intervention, as specified. (Code of Civil Procedure Section 387 (e).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: There is little question that housing in California is inordinately expensive and that a growing number of Californians cannot afford to purchase a home. Given that state law provides them with significant authority over land use and housing policies, local governments play a critical role in boosting the supply of affordable housing. California’s planning laws require local agencies to identify their housing needs and the areas within a jurisdiction suitable to meet those needs. Additional laws authorize local governments to provide incentives to develop affordable housing and new state level laws authorizing the state to take action to ensure local agencies meet their housing goals. Unfortunately, as a result of local opposition to new development or simple government inaction, far too many local agencies fail to meet their housing needs.

This bill would strengthen the ability for state regulators, specifically the Department of Housing and Community Development and the Attorney General, to intervene in lawsuits seeking to enforce state housing laws. In support of this bill, the author states:

Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government.

Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.

California law contains an array of tools to boost housing production, yet California’s housing production is well below the levels necessary to sustain the population. Longstanding California law, the General Plan Law, has required local governments to identify the amount of housing needed in the jurisdiction to keep pace with growth and then to subsequently identify areas within the jurisdiction where housing can be constructed. To assist local governments meet these goals, the state has passed an array of pro-housing laws, including the density bonus law, fair housing laws, supportive housing laws, and permit streamlining laws. However, these state-level efforts have not been sufficient to overcome local inaction and opposition to new development. As a result, as highlighted by a recent report by the state Department of Housing and Community Development, the state needs to produce approximately 2.5 million housing units over the next eight years, with roughly one million of those units being set aside for lower income households, in order for the state to meet the anticipated demand for housing over the same time period. (Dept. of Housing and Community Development, California Statewide Housing Plan: A Home for Every Californian (Mar. 2022) available at: https://storymaps.arcgis.com/stories/94729ab1648d43b1811c1698a748c136.)

Seeking to close this gap, in recent years the Legislature has started taking steps to force local governments to build more housing. In 2017, the Legislature enacted AB 72 (Santiago) Chap. 370, Stats. 2017, which established a process for the Department of Housing and Community Development to enforce state housing laws against non-compliant local governments. Further, in 2019, the Legislature passed the Housing Crisis Act of 2019 (SB 330 (Skinner) Chap. 654, Stats. 2019), which limited certain actions local agencies were using to avoid producing housing. Several other recent measures have also sought to force local agencies to build housing by deeming certain developments “by right” which limits the ability for local agencies to deny development permits. Nonetheless, as California’s housing deficits worsen, additional state-level tools are necessary to ensure proper compliance with the law.

This bill. While existing law authorizes the Department of Housing and Community Development and the Attorney General to directly file lawsuits against local agencies that fail to comply with state housing law, should the state seek to intervene in a third party’s lawsuit, the state would be at the mercy of the presiding judge. To ensure that the state can enforce housing laws, whether or not it initiates the legal action, this straightforward bill grants the Department of Housing and Community Development and the Attorney General an unconditional right to intervene in lawsuits arising under 14 different state housing laws, most notably the law requiring a local agency to comply with the housing development targets established in the Housing Element of the General Plan. Recognizing the scarcity of state resources. this bill also prudently permits the Attorney General to act independently of the Department of Housing and Community Development and seek intervention without requiring the Department to request such an action.

This bill streamlines the litigation process for the state to intervene in local housing disputes. This measure is sponsored by Attorney General Rob Bonta who highlights that the existing discretionary intervention statutes delay housing litigation. The Attorney General notes that the existing requirements for a motion to be heard on the right to intervene can add months of delay to a case. The proponents of the bill highlight that in one case, involving the City of Anaheim and an affordable housing development, a series of judicial recusals and resulted in a six month delay between the time the state first moved to intervene in the matter and the date in which the motion for intervention was set to be heard. (Notably that motion is set for the same date as this bill is slated to be heard in this Committee, thus the delay may eventually be longer.) By granting the state an unconditional right to intervene in housing litigation, this bill should lessen delays, provide for judicial efficiency, and resolve housing issues in a more timely manner.

By granting the state unconditional rights to intervene in housing litigation this bill should protect critical state law from problematic court decisions. This measure is not entirely unique as it pertains to the Attorney General getting involved in third party litigation. For example, currently, the Attorney General is authorized to intervene in litigation involving Proposition 65. One of the primary drivers of intervention in those matters is to ensure that arguments are not put forward that may jeopardize the state enforcement at a later date. In addition to enforcing critical housing laws, this bill would similarly help the state ensure that no adverse court decision may inadvertently undermine state housing laws.

ARGUMENTS IN SUPPORT: This measure is sponsored by Attorney General Rob Bonta and is supported by a coalition of housing advocates and developers. In support of the bill the Attorney General notes:

The Attorney General’s Office enforces state housing and development laws in the Attorney General’s independent capacity and on behalf of client agencies, including HCD. Existing law empowers the Attorney General to take legal action on HCD’s behalf, or independently, against localities who violate state housing laws. Many of these laws, including the Housing Accountability Act, also allow third parties to file their own lawsuits to challenge local land use planning and permitting decisions.

When a third party files an action to enforce state housing laws, the Attorney General’s Office may seek to become a party to the lawsuit to represent the interests of the State in cases that raise issues of statewide concern regarding the implementation or enforcement of state housing laws. To do so, the Attorney General must formally petition the court for permission to intervene. This procedural hurdle causes unnecessary delay as courts may take months to schedule a hearing on the petition. AB 1485 would remove this procedural hurdle by granting the Attorney General an unconditional, statutory right to intervene in pending third party actions to redress state housing law violations.

ARGUMENTS IN OPPOSITION: This bill is opposed by an organization named Catalysts for Local Control. In opposition to the bill they write:

Current law already gives Housing and Community Development and the Attorney General powers to intervene if local planning and zoning laws are violated. The Attorney General is counted on to first and foremost represent California citizens, not special profit-driven housing development and investment interests who are not building the supply of affordable housing that is needed. This law would further tensions and reduce trust and confidence in the Attorney General and the office. Calling on the state’s top lawyer to operate hand-in-glove with an increasingly discredited state agency is not sound policy.

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Rob Bonta (sponsor)

Abundant Housing LA
Bay Area Council
Build Casa
California Apartment Association
California Community Builders
California Yimby
Circulate San Diego
Civic Well
Council of Infill Builders
East Bay Yimby
Fieldstead and Company, INC.
Greenbelt Alliance
Grow the Richmond
Housing Action Coalition
How to ADU
Midpen Housing
Mountain View Yimby
Napa-Solano for Everyone
National Association of Hispanic Real Estate Professionals (NAHREP)
Northern Neighbors SF
Peninsula for Everyone
People for Housing - Orange County
Progress Noe Valley
San Francisco Yimby
Sand Hill Property Company
Santa Cruz Yimby
Santa Rosa Yimby
Silicon Valley @ Home
Silicon Valley Leadership Group
South Bay Yimby
Southside Forward
SPUR
Ventura County Yimby
Yimby Action
Yimby SLO

Opposition

Catalysts for Local Control

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing: April 12, 2023

ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT

Buffy Wicks, Chair

ABPCA Bill Id:AB 1485 (

Author:Haney) – As Amended Ver:March 28, 2023

SUBJECT: Housing element: enforcement: Attorney General

SUMMARY: Grants the Department of Housing and Community Development (HCD) and the Office of the Attorney General (OAG) the unconditional right to intervene in any suit brought to enforce specified housing laws. Specifically, this bill:

1. Grants HCD and the OAG the unconditional right to intervene in any suit brought to enforce any of the following state laws, as specified:
   1. Housing Element Law;
   2. The Housing Accountability Act;
   3. “No net loss” policy for implementing housing elements, as specified;
   4. Density bonus law;
   5. Fair housing law, as specified;
   6. The Housing Crisis Act of 2019;
   7. The obligation to affirmatively further fair housing as specified in GC Section 8899.50;
   8. Housing streamlining laws, as specified;
   9. Supportive housing streamlining laws;
   10. Low barrier navigation center streamlining laws;
   11. Laws related to floor area ratio standards, as specified;
   12. The requirement to submit an annual progress report regarding implementation of local housing elements;
   13. Laws related to the enforcement of minimum parking requirements on certain developments; and
   14. The Affordable Housing and High Road Jobs Act of 2022.
2. Grants the OAG this unconditional right whether intervening in an independent capacity or pursuant to a notice or referral from HCD.

EXISTING LAW:

1. Establishes Housing Element law, which provides that each city and county’s fair share of housing is to be determined through the regional housing needs allocation process. (Government Code (GC) Section 65580 through 65589.11)
2. Requires HCD to notify a local government, and allows HCD to notify the office of the Attorney General, if HCD finds that:
   1. A housing element does not substantially comply with state law; and
   2. Any local government has taken an action in violation of specified laws. (GC 65585(j))
3. Authorizes the OAG to seek all remedies available under law to enforce state law in an independent capacity. (GC 65585(n))
4. Specifies that an intervention in a civil action takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
   1. Joining a plaintiff in claiming what is sought by the complaint;
   2. Uniting with a defendant in resisting the claims of a plaintiff; or
   3. Demanding anything adverse to both a plaintiff and a defendant. (Code of Civil Procedure (CCP) Section 387(b))
5. Requires a nonparty to petition the court for leave to intervene by noticed motion or ex parte application. Requires the petition to include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests. (CCP 387(c))
6. Requires a court, upon timely application, to permit a nonparty to intervene in an action or proceeding if either of the following conditions is satisfied:
   1. A provision of law confers an unconditional right to intervene; or
   2. The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. (CCP 387(d)(1))
7. Authorizes a court, upon timely application, to permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. (CCP 387(d)(2))

FISCAL EFFECT: Unknown.

COMMENTS:

Author’s Statement: According to the author, “Over the last few years the California Legislature has made responding to the State’s housing crisis a top priority. Numerous laws requiring local governments to follow the State’s affordable housing goals and actually build housing have been signed into law. Unfortunately, many local governments have chosen to break State law by ignoring the important housing requirements enacted by their State government. Attorney General Rob Bonta has also made housing law enforcement a top priority for the Department of Justice, taking legal action to prosecute housing law violators. But in order for the Attorney General to represent the State's interests in cases filed by third parties, the Department of Justice is currently required to petition the court for the ability to intervene in the case. This requirement can cause months of delays in housing violation litigation. AB 1485 strengthens the State’s ability to enforce our affordable housing goals and to hold violators accountable, by granting the Attorney General the automatic right to intervene in pending housing cases.”

Enforcement of State Housing Laws: California has a multi-million unit deficit of housing. This mismatch of supply and demand has resulted in our longstanding housing crisis: home prices that are double the national average, a majority of renters sacrificing basic needs like food and health care to pay for housing, and homelessness that exceeds 170,000 unhoused Californians.

In recent years, the Legislature has implemented many policy changes to address the housing deficit, including creating processes requiring streamlined, ministerial approval of housing and requiring local governments to plan and zone for more housing via the housing element process. For many years prior to the enactment of these and other laws, local governments often treated the housing element and other housing requirements as a “paper exercise” because the state lacked strong enforcement tools to ensure compliance.

However, in 2017, AB 72 (Santiago, Chapter 370) established a process for HCD to enforce state housing laws. AB 72 requires HCD to notify a local government, and allows HCD to notify the OAG, if HCD finds that a local government’s housing element does not substantially comply with state law, or if any local government has taken an action in violation of specified housing laws. AB 72 currently covers violations of the following statutes:

• Four statutes to streamline both market-rate and affordable housing: state Density Bonus Law; SB 35 (Wiener, Chapter 366, Statutes of 2017), AB 2162 (Chiu, Chapter 753, Statutes of 2017), AB 101 (Chapter 159, Statutes of 2019), and AB 2011 (Wicks, Chapter 647, Statutes of 2022).
• Statutes to create more certainty for development: the Housing Accountability Act; SB 330 (Skinner, Chapter 654, Statutes of 2019), which, among other provisions, locks in the development rules at the time of application and creates demolition protections for existing housing; SB 478 (Wiener, Chapter 363 Statutes of 2021), which established minimum floor-area ratios for smaller housing development projects; and AB 2097 (Friedman, Chapter 459 Statutes of 2022), which removed the ability for local governments to require parking near transit.
• Statutes that direct certain local government actions and behaviors: fair housing and antidiscrimination laws; the “no net loss” policy for implementing housing elements; the longstanding requirement for local governments to submit their Annual Progress Report to the state regarding implementation of their housing elements; and AB 686 (Santiago, Chapter 958, Statutes of 2018), which requires the state and local governments to affirmatively further fair housing.

Committee staff notes that this committee recently approved AB 434 (Grayson, 2023), which proposes to add eight new statutes to the list of statutes HCD and the OAG must enforce, including laws that streamline approvals of ADUs, require ministerial approval of certain lot and parcel splits, create the Middle Class Housing Act of 2022, and require that local governments cannot conduct more than five public hearings for a project that meets certain standards. Additionally, SB 450 (Atkins, 2023) would add the provisions of SB 9 (Atkins, Chapter 162, Statutes of 2021) governing urban lot splits and certain ministerial housing approvals to the list of laws HCD and the OAG must enforce.

In addition to the expanded authority under AB 72, HCD has created and staffed a Housing Accountability Unit (HAU), which provides education and technical assistance as well as oversight and enforcement of housing element laws to ensure local governments comply with specified state housing laws. Violations of these laws may lead to a variety of consequences for local governments, including referral to the OAG for further civil action.

Furthermore, many of the laws referenced above also provide a mechanism for private third party actors – for example, developers, advocacy organizations, and members of the public – to file their own lawsuits to challenge local land use planning and permitting decisions. The Housing Accountability Act, as an example, provides a private right of action to parties, including the development proponent, a person who would be eligible to live in the proposed development, or a housing organization, who wish to challenge a local government that denied approval or imposed severely burdensome conditions for approval on a housing development project.

Role of the OAG in Enforcement. Currently, the OAG enforces state housing and development laws both in the OAG’s independent capacity and on behalf of client agencies, including HCD.

In 2022 Attorney General Bonta created a Housing Strike Force within the Department of Justice. The Strike Force is a cross-sectoral team of attorneys who work with state agencies and partners to enforce statewide housing laws.

While HCD and the OAG may bring direct enforcement actions against local governments, in order to intervene in third party housing litigation, HCD/OAG must use the process outlined in Code of Civil Procedure Section 387 to petition the court to be granted intervenor status and join a suit. In essence, HCD/OAG must prove to the court that they have an interest related to the litigation that may be impaired if they are not allowed to intervene, which can be a lengthy and onerous process. The OAG notes that while parties to third party actions may seek different outcomes for a particular project, HCD/OAG seeks to represent the people of California’s interest in private lawsuits that raise issues of statewide concern.

The OAG further notes that given the impacted dockets of California courts, which were further delayed due to the COVID-19 pandemic, it can take several months to a year for such a motion to even be considered by a court. As an example of a current suit where HCD and OAG sought intervenor status, OAG provided information regarding the timeline of their petition in the case of Grandma’s House of Hope v. City of Anaheim, a fair housing case involving a supportive housing project for low-income women with mental health conditions:

1. Case filed: January 19, 2022
2. HCD’s initial ex parte application to intervene filed: October 3, 2022
3. HCD’s motion for leave to intervene filed: October 20, 2022
4. Hearing on HCD’s motion for leave to intervene set for: April 4, 2023 (six month delay)
5. The presiding judge recused himself: November 14, 2022
6. HCD re-filed its motion for leave to intervene: November 15, 2022
7. Hearing on HCD’s second motion for leave to intervene set for: February 3, 2023 (three month delay)
8. Second presiding judge also recused himself: Week of the February 3 hearing
9. Matter was transferred to a third courtroom that scheduled a hearing for HCD’s second motion for leave to intervene: April 18, 2023 (two month delay from rescheduled February 3, 2023 hearing date)

Essentially, in this action, HCD/OAG and the existing plaintiff and defendant will be waiting approximately 6 months from their initial request to intervene before the departments even receive a ruling on whether or not the court will grant intervention.

Under this bill, HCD/OAG would have the statutory right to intervene in matters to enforce housing laws, meaning they could simply file an ex parte application or uncontested motion seeking leave to intervene or, more likely, the parties would simply stipulate to HCD/OAG joining the case as a matter of statutory right. This would strengthen the state’s ability to enforce housing laws and ensure that the state’s interests are heard as a matter of right in private litigation dealing with the application of those laws.

Arguments in Support: According to California Attorney General Rob Bonta and the Housing Action Coalition, the bill’s cosponsors, this bill will grant OAG a statutory right to intervene similar to what already exists for the OAG for other areas of law, including environmental cases affecting the public. They further argue this bill will strengthen the OAG’s ability to hold housing law violators accountable and ensure the state’s interests are more efficiently represented in privately filed cases challenging local land use planning and permitting decisions.

Arguments in Opposition: None on file.

Related Legislation:

AB 434 (Grayson, 2023) would add several additional housing laws to the list of laws that HCD must enforce. This bill is currently pending before the Assembly Committee on Local Government.

SB 450 (Atkins, 2023) would, among other things, add the provisions of SB 9 to the list of laws that HCD must enforce. This bill is currently pending before the Senate Housing Committee.

AB 215 (Chiu), Chapter 342, Statutes of 2021 provided HCD with additional enforcement authority over local agency violations of specified housing laws.

AB 72 (Santiago), Chapter 370, Statutes of 2017 gave HCD the authority to find a local government’s housing element out of substantial compliance if it determines that the local government acts or fails to act in compliance with its housing element, and allows HCD to refer violations of law to the Attorney General.

Double Referred: This bill was also referred to the Assembly Committee on Judiciary, where it will be heard should it pass out of this committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Housing Action Coalition (Sponsor)

State of California Attorney General (Sponsor)

Abundant Housing LA

Bay Area Council

Build Casa

California Apartment Association

California Community Builders

California YIMBY

Circulate San Diego

CivicWell

Council of Infill Builders

East Bay Yimby

Fieldstead and Company

Greenbelt Alliance

Grow the Richmond

How to ADU

MidPen Housing

Mountain View Yimby

Napa-Solano for Everyone

National Association of Hispanic Real Estate Professionals

Northern Neighbors SF

Peninsula for Everyone

People for Housing - Orange County

Progress Noe Valley

San Francisco YIMBY

Sand Hill Property Company

Santa Cruz YIMBY

Santa Rosa YIMBY

Silicon Valley @ Home

Silicon Valley Leadership Group

South Bay YIMBY

Southside Forward

SPUR

Ventura County YIMBY

Yimby Action

Yimby SLO

Support if Amended

Livable California

Opposition

None on file.

Analysis Prepared by: Nicole Restmeyer / H. & C.D. / (916) 319-2085