Attorney General Bonta Issues Legal Alert to Ensure Housing Applications Stay on Track

OAKLAND — California Attorney General Rob Bonta today issued a legal alert to assist California local officials in processing housing development project applications consistently, fairly, and lawfully. Housing development project applications are official requests submitted to local authorities for approval to build new housing projects. The Permit Streamlining Act was enacted in 1977 to streamline and clarify the processing of permits for all development projects. Local agencies, including charter cities, are required to determine whether a development application is complete, and convey that determination to the applicant, within 30 days of receipt. If deemed incomplete, applicants can revise and resubmit their applications within 90 days thereafter, in a process designed to iteratively refine a development application until it is complete. This process is referred to as the "90-Day Rule."

Senate Bill 330 (Skinner, 2019), the “Housing Crisis Act,” amended the Permit Streamlining Act to allow housing development project applicants to submit a preliminary application, which locks in applicable development standards at the time the preliminary application was submitted. The Housing Crisis Act requires the applicant to then file a full application within 180 days. Some jurisdictions have misinterpreted this law to mean that such applicants only get one or two 90-day review periods before losing their vesting rights. In today’s legal alert, Attorney General Bonta underscores that, for purposes of determining whether a housing development project application is complete, an applicant is entitled to as many 90-day review and resubmission periods as necessary and, throughout the process, retains the rights that vest upon the submission of a preliminary application under the Housing Crisis Act, so long as the applicant submits its first attempt at a full application within 180 days of its preliminary application.

“In recent years, the California Legislature has passed numerous bills to address our housing shortage crisis, and my office is committed to being part of the solution,” said Attorney General Bonta. “The legal alert we are issuing today is important because, unfortunately, some local governments are misinterpreting laws that were intended to add certainty and reduce conflict in the approval process for housing projects. We can't let that confusion continue because it's California's families who pay the high housing costs of unaffordable housing or a long commute when local governments use unfair and unpredictable processes to block needed housing. Our focus must be on results, not delay for the sake of delay."

Key points from the legal alert include:

• The statutory provisions codifying the Permit Streamlining Act, and as amended by Senate Bill 330, expressly contemplate iterative review of development applications, or as many back-and-forth review and revisions as necessary, between an agency and an applicant, for purposes of completeness determinations.
• The separate requirement, that a full development application must be submitted within 180 days of a preliminary application, does not justify limiting this iterative process. This point is particularly crucial with respect to “Builder’s Remedy” applications, and in determining whether a local agency’s decision, or course of conduct, constitutes disapproval of a housing development project application under the Housing Accountability Act.
• The Attorney General’s interpretation of the Permit Streamlining Act’s 90-Day Rule is consistent with at least two recent lower court rulings: Janet Jha v. City of Los Angeles, et al. and Yes in My Back Yard, et al. v. City of Los Angeles, et al. 

Questions on the legal alert can be submitted via email to housing@doj.ca.gov. 

A copy of the legal alert can be found here.