STATE OF CALIFORNIA -BUSINESS, TRANSPORTATION AND HOUSING AGENCY …

STATE OF CALIFORNIA -BUSINESS, TRANSPORTATION AND HOUSING AGENCY             ARNOLD SCHWARZENEGGER, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
1800 Third Street, Suite 430
P. O. Box 952053
Sacramento, CA 94252-2053
(916) 323-3177
FAX (916) 327-2643




       DATE:                         June 20, 2007


       MEMORANDUM FOR:               Planning Directors
                                     Interested Parties


       FROM:                         Cathy E. Creswell, Deputy Director
                                     Division of Housing Policy Development

       SUBJECT:                      Application of Government Code Section 65584.09
                                     (Chapter 614, Statutes of 2005 [AB 1233])


       AB 1233 (Jones), Chapter 614, Statutes of 2005, amended State housing element law to
       promote effective and timely implementation of local housing elements. This bill requires
       sites to be rezoned by prescribed deadlines when a jurisdiction fails to adopt an adequate
       housing element or fails to timely implement programs in its housing element to identify
       adequate sites pursuant to Government Code Section 65583(c)(1). Government Code
       Section 65584.09, which took effect on January 1, 2006, requires local governments to
       zone or rezone adequate sites, within the first year of the new planning period, to address
       any portion of the Regional Housing Needs Allocation (RHNA) for which the jurisdiction
       failed to identify or make available sites in the prior planning period. This memorandum is
       provided to assist local government in addressing the new requirement.

       Government Code Section 65584.09 generally will not apply to local governments where
       the current element was found in compliance by HCD and either:

       ·   the inventory of sites required by Section 65583(a)(3) identified adequate sites; or
       ·   the program actions in the element to rezone or provide adequate sites were fully
           implemented and made available adequate sites.

       Government Code Section 65584.09 will apply to local governments that:

       ·   failed to adopt an updated housing element for the prior planning period;
       ·   adopted a housing element found out of compliance by HCD due to their failure to
           substantially comply with the adequate sites requirement;
       ·   failed to implement the adequate sites programs to make sites available within the
           planning period; or
       ·   failed to identify or make available adequate sites to accommodate a portion of the
           regional housing need.
Government Code Section 65584.09
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Key Provisions of Government Code Section 65584.09:

·    Where a local government failed to identify or make adequate sites available in the
     prior planning period, the jurisdiction must zone or rezone adequate sites to address
     the unaccommodated housing need within the first year of the new planning period. In
     addition to demonstrating adequate sites for the new planning period, the updated
     housing element must identify the unaccommodated housing need by income level.
     To determine the unaccommodated need, jurisdictions could take the following steps:

         Subtract the number of units approved or constructed (by income) since the
         beginning of the previous planning period's RHNA baseline date.
         Subtract the number of units that could be accommodated on any appropriately
         zoned sites specifically identified in the element adopted for the previous planning
         period (not counted above).
         Subtract the number of units accommodated on sites that have been rezoned for
         residential development pursuant to the site identification programs in the element
         adopted for the prior planning period.
         Subtract the number of units accommodated on sites rezoned for residential
         development independent of the sites rezoned in conjunction with the element's
         site identification programs as described above.

                        Equals (=) the "unaccommodated housing need"

Example:

City "A" had a RHNA of 1,000 housing units. While the element demonstrated it had
sufficient sites to accommodate 850 units, it contained a rezone program to
accommodate the 150 unit remaining need for lower income households. By the time of
the next housing element update, the City had not completed the rezoning as described in
the housing element program action. Over the previous 5 years, 1,025 units were
constructed (including 175 units affordable to lower-income households). Although the
rezoning program was not completed using sites described in the element, the City was
able to rezone a smaller 2 acre parcel to high density residential, which could
accommodate 40 lower-income units.

                                      Very                                        Above
                                      Low            Low        Moderate         Moderate
    RHNA                              150            250          200              400
    1) Units constructed               50            125          100              750
    2) Previously identified sites     25             50          100              N/A
       currently available
       (Capacity)
    3) Sites rezoned pursuant to        0             0            N/A              N/A
       Housing Element Program
    4) Sites rezoned (other)            20           20             0               N/A
    Remaining Need                      55           55             0               N/A
    Total Remaining Need                                          110
Government Code Section 65584.09
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As a result, City "A" has an unaccommodated need of 110 units for lower-income
households and must identify or rezone sufficient sites to address this need within the first
year of the new planning period.

·   Once a determination has been made that an unaccommodated housing need exists,
    cities and counties must identify sites that are appropriately zoned, or will be
    appropriately zoned within the first year of the new planning period, to meet the
    unaccommodated housing need. For local governments within Southern California
    Association of Governments (SCAG), whose housing element updates are due no
    later than June 30, 2008, the rezones would need to be completed by June 30, 2009.

·   The sites "made available" as part of the rezone program must comply with the site
    suitability requirements set forth in Government Code Section 65583.2 (Chapter 724,
    Statutes of 2004 [AB 2348]). Refer to the Department's AB 2348 technical assistance
    publication (dated June 9, 2005).

·   Within the first year of the new planning period, cities and counties must adopt and
    complete program commitments to zone and/or rezone sites to address the
    unaccommodated housing need for the previous planning period for which sites were
    not identified. This requirement is in addition to the requirement to identify other
    specific sites to accommodate the RHNA for the new planning period. The jurisdiction
    may not count capacity on the same sites for both planning periods. This requirement
    is set forth in Government Code Section 65584.09(b) which states, "the requirements
    under subdivision (a) shall be in addition to any zoning or rezoning required to
    accommodate the jurisdiction's share of the regional housing need pursuant to Section
    65584 for the new planning period".

The Department hopes this information is helpful. For your assistance, on the following
page, the specific language of Government Code Section 65584.09 is included. If you
have any questions or would like additional information or technical assistance, please
contact the Division of Housing Policy Development's Housing and Land-Use Specialists,
Don Thomas or Paul McDougall, at (916) 445-4728.
Government Code Section 65584.09
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                          Government Code Section 65584.09

(a) For housing elements due pursuant to Section 65588 on or after January 1,
    2006, if a city or county in the prior planning period failed to identify or make
    available adequate sites to accommodate that portion of the regional housing
    need allocated pursuant to Section 65584, then the city or county shall, within
    the first year of the planning period of the new housing element, zone or rezone
    adequate sites to accommodate the unaccommodated portion of the regional
    housing need allocation from the prior planning period.

(b) The requirements under subdivision (a) shall be in addition to any zoning or
    rezoning required to accommodate the jurisdiction's share of the regional
    housing need pursuant to Section 65584 for the new planning period.

(c) Nothing in this section shall be construed to diminish the requirement of a city
    or county to accommodate its share of the regional housing need for each
    income level during the planning period set forth in Section 65588, including the
    obligations to (1) implement programs included pursuant to Section 65583 to
    achieve the goals and objectives, including programs to zone or rezone land,
    and (2) timely adopt a housing element with an inventory described in
    paragraph (3) of subdivision (a) of Section 65583 and a program to make sites
    available pursuant to paragraph (1) of subdivision (c) of Section 65583, which
    can accommodate the jurisdiction's share of the regional housing need.