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TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: SENIOR ADMINISTRATIVE ANALYST
DATE: SEPTEMBER 17, 2002
SUBJECT: REQUEST TO OPPOSE LEGISLATION CONCERNING PRE-EMPTION OF LOCAL AUTHORITY AND PROPERTY RIGHTS
This item is placed on the agenda by request of Councilman Larry Clark for Council consideration to oppose AB 2292 (Dutra).
The Planning and Zoning law requires every City and County to adopt a general plan, including a housing element. A housing element contains an assessment of housing needs and a five-year action program, including the identification of adequate sites to encourage the development housing for all income levels. State law requires that the maximum allowable residential density be consistent with the applicable zoning ordinance and the adopted general plan.
Assembly Bill 2292 is intended to address local officials from imposing subdivision standards that make affordable housing infeasible. Assembly Bill 2292 (Dutra) would prohibit a City or County from reducing, requiring or permitting the reduction of residential density on any parcel below the density that was used to determine compliance with the housing element of its general plan, unless the City or County makes written findings supported by substantial evidence of the following:
So, if a City or County down-zones one parcel, it must concurrently up-zone another parcel to make up the difference. Therefore, there will be no net loss of residential unit capacity.
AB 2292 would also require that if a court finds a City or County in violation of this prohibition, the court would award the plaintiff who proposed the housing development reasonable attorney fees and costs of the suit.
Assembly Bill 2292 (Dutra) has passed both the State Assembly and Senate. The League of California Cities is urging its membership to send a letter requesting Governor Gray Davis to veto this bill.
Co-sponsors of this bill, the California Association of Realtors, California Apartment Association, California Rural Legal Assistance Foundation and Western Center on Law and Poverty argue that this bill is necessary to address situations in which local governments re-zone land to reduce housing density as a means to restrict or halt development that is opposed by local residents. The proponents view down-zoning as a form of "NIMBYism" that is contributing to California’s chronic housing shortage, particularly of multi-family housing for moderate to low-income families. By adapting the concept of no net loss to residential densities, this bill makes local officials who want to cut densities boost them somewhere else in the community.
The League of California Cities, American Planning Association and other agencies oppose AB 2292 for some of the following reasons and potential implications:
Partial List of Registered Support:
Partial List of Registered Opposition:
None associated with this report.
September 18, 2002
The Honorable Governor Gray Davis
RE: AB 2292 (Dutra)
Dear Governor Davis:
On behalf of the City Council of Rancho Palos Verdes, I respectfully request that you veto AB 2292 (Dutra).
This bill removes discretion and limits land use authority of local governments to respond to changing conditions within their communities. AB 2292 "locks in" any residential zoning used to comply with the housing element for years at a time. It restricts the freedom of a property owner to obtain a desired down-zoning or re-zoning of their property from local government and provides an incentive for new litigation by requiring local governments and their tax payers to pay the attorney’s fees of those who sue them.
While it is the author’s intention to ensure that sufficient zoning of high-density properties remain available, the practical outcome of this legislation will be to stifle the ebb and flow of the marketplace and hamper local ability to respond to changing conditions within their communities. If AB 2292 is signed, local governments will be reluctant to grant future landowner or developer requests to re-zone or down-zone residential property because they will be exposed to lawsuits. Property owners desiring these changes will most likely be asked to either purchase or identify the other property in the community that will be up-zoned for housing and perhaps to indemnify local government from any future lawsuit resulting from the down-zoning or re-zoning.
This legislation also creates a new cause of action that is sure to foster new forms of land use litigation. Neighborhood and environmental groups, and others who seek to stop a development will have a new avenue to litigate against any change in zoning needed to accommodate a development project. Landowners adjacent to any property designed to be up-zoned can also use these provisions as a basis for a legal challenge. Competing developers can use these provisions to challenge rival projects.
For these reasons, the City of Rancho Palos Verdes requests your VETO of AB 2292.