Pitting affordable housing advocates against local government officials, planners, and builders, a housing element bill has seemingly risen from the dead to become one of the hottest land use bills in Sacramento.

Assembly Bill 602 would provide an unlimited time period during which someone could sue over a jurisdiction's housing element, which is intended to demonstrate how a city or county will provide its fair share of housing at various cost levels. According to the affordable housing advocates supporting the legislation, a 2008 Court of Appeal decision placed a 90-day statute of limitations on legal challenges to housing elements. The bill would permit lawsuits at any point during the housing element planning period.

Two years ago, the First District Court of Appeal permitted advocates' lawsuit over the City of Pleasanton's housing element to proceed, but the court also ruled that suits must normally be filed within 90 days of housing element adoption (see CP&DR Legal Digest, September 2008).

Richard Marcantonio, who represented the advocacy group Urban Habitat Program in the Pleasanton litigation, said AB 602 would restore "what everybody thought the law was before the Court of Appeal in the Pleasanton case rewrote the law."

In the final weeks of last year's legislative activity, Assembly Democrats gutted and amended AB 602 – which had concerned insurance matters, – to address the housing element statute of limitation. The measure stalled in part because local government representatives and housing advocates could not negotiate an agreement. With assistance from Senate President Pro Tem Darrell Steinberg (D-Sacramento), Assemblyman Mike Feuer (D-Los Angeles) resurrected AB 602 on June 21, and the bill is set for a hearing in the Senate Transportation and Housing Committee on June 29.

Most local government land use decisions come with short statutes of limitations. You have 30 days to sue over an environmental impact report, for example. The short time frame for filing lawsuits helps provide certainty on land use policy.

Housing advocates say the housing elements should be an exception for several reasons: Because of the way planning cycles work, scores of housing element updates may get adopted within a matter of days. Advocacy groups say they can't keep track of all of the housing elements as they go through the process. The advocates also say that housing elements can have unique regional impacts, and, they note, the system is built on citizen enforcement. Finally, they say, the threat of litigation sometimes is necessary to get a local government to take affordable housing issues seriously.

"Local jurisdictions are already skating by because there is not enough enforcement of affordable housing laws," Marcantonio charged.

Naturally, cities and counties object to a bill that could extend their legal exposure, especially on the politically sensitive topic of affordable housing development. But even cities that are good actors on affordable housing and that have adopted thoughtful housing elements oppose AB 602.

There is a feeling that housing advocates are over-reaching. Remember, the advocates won the 2008 procedural ruling in the Pleasanton case, and, with legal assistance from the attorney general's office, they won a Superior Court ruling on the merits earlier this year. As of right now, the City of Pleasanton cannot issue a building permit until it adopts a housing element acceptable to the court. What more do the housing crusaders want? 

Bill Higgins, a lobbyist with the League of California Cities, noted that the requirements for housing elements have expanded during recent years. Housing elements now must address farmworker housing and emergency shelters, for example. Inventories of land available for housing development must be far more detailed than they used to be.

"The universe of what you can argue is wrong with a housing element has grown a great deal," Higgins said.

Environmental groups live with the California Environmental Quality Act's short statutes of limitations, and there are thousands of CEQA decision taken every year. Plenty of those actions – in regards to public works projects, commercial power centers and large subdivisions – have regional impacts. So what makes housing elements special?

"The housing element occupies a unique place in California law," Marcantonio responded. "It occupies a unique place in local government law because a local government's ability to control its land use is subject to its ability to provide affordable housing." The housing element statute says that provision of housing is a matter of statewide importance and urgency. That's unusual language, he said.

Under SB 375, the importance of housing elements only increases. Housing elements are essential for implementing sustainable communities strategies that are intended to reduce greenhouse gas emissions from automobiles. But if housing elements are open to litigation at any time, local governments and builders argue they will lack the certainty they need to make progress on development that is less automobile dependent. 

The two sides have already resumed negotiations that broke off last year. But it's very important to remember that those talks are occurring in the shadow of a November ballot initiative that would suspend AB 32, and during a gubernatorial campaign in which greenhouse gas emissions regulation may be a central issue.

Passing a bill so closely linked to lawyers, centralized planning and climate change may not be in the Democrats' best campaign interests for 2010.

–  Paul Shigley