AB 1322 does what?
It’s difficult to decide where to start with breaking down the absurdities in this terrible piece of reporting that ran on the 48 Hills blog discussing California Assembly Bill 1322.
To get straight to the point, the author is entirely wrong with his conclusion. In no way would AB 1322 affect any locally passed voter initiatives related to rent control, eviction limits, or condo conversion.
AB 1322 only helps cities that are stuck in a catch-22 with current law and only deals with a community’s ability to certify a new Housing Element every 7 years. It can only be used when a previously passed local voter initiative would prevent the city from complying with state law around forming a Housing Element.
The author’s attempt to spin this as anti-tenant is misguided, misplaced, and frankly confusing given that it’s supported by both pro-tenant and pro-housing groups.
It’s as if the author didn’t actually read (or possibly understand) the bill. He also failed to just read any of the committee analysis and floor analysis of the bill that all explain how the bill works and the impact of the bill in detail. The author could have also Google’d “AB 1322” and found one of my many op-eds on the bill.
It seems as if the author read one line in the middle of the bill and cherry-picked a part of the process the bill creates to allow cities to comply with state law and assumes it can be used in other cases. He then speculates that this then allows the bill to do terrible things that the bill directly expressly does not allow. Impossible scenarios like where it could be used to allow cities to avoid things like voter-passed rent control laws.
What AB 1322 actually does #
Let’s start with the facts about AB 1322:
- Cities and counties are currently required to enforce and defend both state law and locally passed voter initiatives. We currently don’t have a simple process to handle when local voter initiatives become out of compliance with state law as state law evolves outside of asking the voters to repeal the law (often at the next general election). In the meantime cities are left in a bit of a catch-22/quagmire.
- For land-use related laws this is especially a problem. The changes in state law, new RHNA requirements, and these locally pass voter initiatives that limit housing can often prevent a city from finding a resolution and figuring out a way to form and submit a compliant Housing Element on time under California’s tight deadlines. Between receiving a RHNA and having to certify is on average around 18 months so there isn’t much time to fix land use legislation at the ballot box in a costly election in that time frame. Some changes can also only be done at the general election which is too late to meet certain deadlines.
- AB 1322 creates an optional process that cities can use to recognize when these conflicts occur that could prevent them from forming a compliant Housing Element. The process involves a public meeting on the issue where it can be analyzed and planning staff and the public can weigh in.
- Then, and only after going through that process, AB 1322 would allow the city to vote to suspend (in part or in full) the conflicting voter initiative by a simple majority of the governing body.
- That action then allows the city to resolve their issue with compliance with state law in a timely manner to meet the strict timing deadlines by the state with forming a Housing Element.
- Interested 3rd parties have a short period to appeal to the decision by the body to a judge who would then be able to determine if the decision was made in good faith given all the evidence.
- The city is then guarded against most of the legal risk it currently faces by not following the local voter measure as it makes local changes to meet its housing requirements under state law.
AB 1322 expressly deals with Housing Elements and nothing else.
Housing Elements are plans that communities must update and submit to the state every 7 years. In these plans cities have to designate and zone for a minimum amount of new housing units or RHNA (the RHNA is a number of units a community must allow defined by a state body who determines need before the Housing Element process begins). That plan must allow new homes that meet a range of densities and that target different incomes in the city, among following other rules around affirmatively improving equity and access to new residents in the community. The penalties for not forming a compliant Housing Element are severe so it’s in the city’s best interest to comply with state law.
In the 48 Hills article, the author opines that the bill could be used to end locally passed rent control laws, however, rent control is not a land-use issue that could ever be something that could prevent a compliant Housing Element for any community so AB 1322 would never come into play. The same goes for eviction rules and condo conversions. These expressly are not issues that could prevent a compliant Housing Element to be formed so AB 1322 could not be used in these circumstances. Only the restrictions on the ability of the community to build new housing would realistically be at play in the process created by AB 1322 to override those types of local voter initiatives.
This legislation is nothing more than a bug fix for a situation that was not conceived of when different housing laws and voter initiative laws we originally passed, but now is a real problem for several cities in the state that this directly helps including Alameda, Piedmont, Encinitas, San Jose, and Monterey Park.
The author also opines that the bill is an attack on democracy when in fact it preserves local control by allowing locally elected representatives to decide what action to take instead of the state legislature.
The bill sponsored by pro-tenant and pro-housing advocates alike. The only opponents are NIMBY groups like Livable California that are pushing to increase local voter control of zoning to the detriment of finding real solutions to the housing crisis.