Accountability and Enforcement
California’s housing crisis has reached historic proportions despite the passage of numerous laws intended to increase the supply of housing affordable to Californians at all income levels. In 2017, several bills were signed to strengthen and clarify those existing laws; and increase accountability and enforcement to better address the housing needs of Californians. Assembly Bill (AB) 72 (Chapter 370, Statutes of 2017) was one of those laws.
AB 72 grants the California Department of Housing and Community Development (HCD) authority to review any action, or failure to act, by a local government that HCD determines is inconsistent with an adopted housing element or Housing Element Law. This includes failure to implement fair housing and program commitments included in a local government’s adopted housing element. In addition to local housing element implementation, HCD’s enforcement authority includes the Housing Accountability Act; No Net Loss Law; Density Bonus Law; Land Use Discrimination Law; Accessory Dwelling Unit laws; Affordable Housing Preservation Noticing Law; and Surplus Land Act.
Starting January 1, 2022, HCD will also have authority to enforce Affirmatively Furthering Fair Housing law, The Housing Crisis Act of 2019 – SB 330, Streamlined Ministerial Permit Processes – SB 35, By Right Supportive Housing Provisions – AB 2162, By Right Low Barrier Navigation Centers – AB101, and limitations on development standards – AB 478.
As part of the 2021-2022 state budget, HCD received additional staff to grow its accountability efforts and formed the Housing Accountability Unit. While education and technical assistance is always the first step in HCD’s accountability efforts, the Housing Accountability Unit holds jurisdictions accountable for their housing element commitments and these other state laws. Violations of these state laws may lead to consequences including revocation of housing element certification and/or referral to the California Office of the Attorney General.
HCD enforces the following housing laws:
HCD has authority to review any action or failure to act by a local government that it determines is inconsistent with an adopted housing element or Housing Element Law. This includes failure to implement program actions included in the housing element.
Learn more about housing elements – including what they are, why they matter, HCD’s review process, and an array of technical assistance designed for local governments during their housing element preparation processes – on HCD’s main housing elements page.
Housing Accountability Act
The Housing Accountability Act (HAA) (Government Code section 65589.5) establishes limitations to a local government’s ability to deny, reduce the density of, or make infeasible housing development projects, emergency shelters, or farmworker housing that are consistent with objective local development standards and contribute to meeting housing need. The Legislature first enacted the HAA in 1982 and recently amended the HAA to expand and strengthen its provisions as part of the overall recognition of the critically-low volumes of housing stock in California. In amending the HAA, the Legislature made repeated findings that the lack of housing and the lack of affordable housing, is a critical problem that threatens the economic, environmental, and social quality of life in California. HCD has authority to hold local jurisdictions accountable for their role in the housing approval process.
Learn more from the Housing Accountability Act Technical Assistance Advisory.
No Net Loss Law
The purpose of No Net Loss Law (Government Code section 65863) is to ensure development opportunities remain available throughout the planning period to accommodate a jurisdiction’s regional housing needs allocation (RHNA), especially for lower- and moderate-income households.
Learn more from the No Net Loss Law Technical Assistance Advisory.
Density Bonus Law
State law requires jurisdictions to provide density bonuses and development incentives to all developers who propose to construct affordable housing on a sliding scale, where the amount of density bonus and number of incentives vary according to the amount of affordable housing units provided. Specifically, state law requires the provision of total units to be affordable to lower- and moderate-income households. If certain conditions are met, incentives, concessions and waivers must be granted to provide relief from development standards (e.g., height, parking requirements, etc.) that might otherwise make the development infeasible.
Jurisdictions must adopt an ordinance that specifies how the Density Bonus Law will be implemented locally. This ordinance may comprehensively address all parts of the law (e.g. eligibility, bonus percentages, etc.) or simply indicate that the Density Bonus Law will be implemented directly from State statute.
See the full text of Density Bonus Law in Government Code sections 65915-65918 .
Anti-Discrimination in Land Use
The California legislature has determined that discriminatory practices which inhibit the development of housing for persons of very low, low, moderate, and middle incomes, or emergency shelters for persons experiencing homelessness to be a matter of statewide concern. California’s robust anti-discrimination laws render any action by jurisdiction null and void if it denies any individual or group of individuals residence, landownership, tenancy, or any other land use in the state based on the reasons below. Additionally, jurisdictions are prohibited from enacting or administering ordinances to discriminate against residential development or emergency shelter for any of the following reasons
- The lawful occupation, age, or protected characteristic of any individual or groups of individuals. Protected characteristics include race (including hair texture and style), color, ancestry, national origin, religion, disability (including mental and/or physical), sex (including, but not limited to, pregnancy, childbirth, breastfeeding, or related medical conditions), gender, sexual orientation, gender identity, gender expression, genetic information, marital status, national origin, familial status (households with children under age 18, pregnant, or pursuing legal custody of children under 18), source of income (including Section 8 Housing Choice Vouchers and other forms of rental assistance), and military/veteran status. The law extends protection not only to individuals who actually possess these protected characteristics but also to individuals who are perceived to possess these characteristics and to individuals associated with persons who have one or more of these characteristics. However, state law includes an exemption for familial status within senior housing.
- The method of financing of any residential development (including affordable housing).
- The intended occupancy of any residential development by persons or families of very low, low, moderate, or middle income.
See the full text of the Anti-Discrimination in Land Use Law in Government Code section 65008.
Accessory Dwelling Unit Ordinances
Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) are a flexible form of housing that can help Californians more easily access housing. By design, ADUs are more affordable and can provide additional income to homeowners. ADU law and recent changes intend to address barriers, streamline approval, and expand potential capacity for ADUs, recognizing their unique importance in addressing California’s housing needs.
While not required, jurisdictions may adopt an ordinance to outline standards for permitting ADUs and JADUs, pursuant to state law. If a local agency does not make changes and implements an ordinance that is not compliant with state law, HCD may notify the Attorney General.
For more information, see the ADU handbook.
Preservation Noticing Law
Preservation Noticing Law (Government Code sections 65863.10, 65863.11, and 65863.13) defines the rights and responsibilities of tenants and owners of expiring affordable housing, as well as the rights of the community partners interested in these properties. Owners of government-assisted projects are required to provide tenants and local public agencies notice when subsidies or rental restrictions expire, opt out, or are terminated, unless specifically exempted. These notices must be delivered to the affected tenant households and public agencies at 12 months and six months prior to the expiration date of the restrictions. For properties with fixed expiration dates, notices must also be delivered three years prior to expiration.
Additionally, Notice of Opportunity to Submit an Offer to Purchase must be sent to all regionally-interested qualified entities at least 12 months prior to expiration, unless an exemption applies. Qualified entities are pre-qualified groups who have shown the capacity and commitment to purchase expiring properties at market rate and preserve them as affordable housing. The owner has an obligation to entertain such offers.
Learn more from the Preservation webpage.
Surplus Land Act
The purpose of the Surplus Land Act is to connect local agencies with developers who are interested in building more affordable homes on surplus local public land that is both available and suitable for housing development.
Beginning January 1, 2020, local agencies must send notices about available, surplus local public land to HCD, any local public entity within the jurisdiction where the surplus local land is located, and developers who have notified HCD of their interest in developing affordable housing on surplus local public land.
Beginning January 1, 2021, prior to agreeing to terms to dispose of surplus property, local agencies must send a description of notices of availability sent, and negotiations conducted, in addition to a copy of any restrictions to be recorded against the property, to HCD for review using HCD forms.
HCD understands that this is a new process, and is making technical assistance available to local agencies at every stage of the land disposition process. You can direct all Surplus Land Act inquiries to firstname.lastname@example.org.
Coming Soon – Effective January 1, 2022
Effective January 1, 2022, HCD’s enforcement authority will expand to include the following:
- Affirmatively Furthering Fair Housing law (Government Code section 8899.50)
- The Housing Crisis Act of 2019 (SB 330 or 2019 - Government Code sections 65941.1, 65943, and 66300)
- Streamlined Ministerial Permit Processes (SB 35 of 2017 - Government Code section 65913.4) – See HCD’s Streamlined Ministerial Approval Process Guidelines.
- By Right Supportive Housing Provisions (Article 11)
- By Right Low Barrier Navigation Centers (Article 12)
- Limitations on development standards (Government Code section 65913.11)
HCD enforces state housing laws in a manner that meaningfully and positively impacts the provision of housing in all communities across the state. HCD may initiate review of an issue based on information contained within a housing element, annual progress report, stakeholder comment letter, phone call, email, news article, or additional source. During its review, HCD may consult with any local government, agency, group, or person.
HCD Actions and Results
HCD evaluates each issue on a case-by-case basis. Generally, the first step involves conversations with the local government to define the circumstances surrounding the issue and gain understanding of the local government’s perspective. Based upon information received, HCD may choose to monitor a situation prior to taking additional action.
If the circumstances warrant additional action, HCD may issue a letter of inquiry, a letter containing technical assistance, or a letter requesting corrective action. Local governments are generally provided 30 days to respond before HCD takes further action. However, this timeframe may be adjusted on a case-by-case basis.
Based upon the response received, HCD may issue a letter acknowledging the local government’s response or corrective action taken. HCD may also issue notice of decertification of housing element compliance and/or provide notice to the local government that the California Office of the Attorney General has been notified of a violation.
Each issue is unique; therefore, the process is not necessarily linear and may include multiple instances of correspondence between HCD and local governments. Local governments have the opportunity to respond to HCD each time a letter of inquiry, technical assistance, or correction is issued. However, the image below shows HCD's general approach to enforcement under AB 72.
General Approach to Enforcement
HCD makes enforcement letters and actions available to the public. A report of all letters issued is organized by jurisdiction, date, and subject matter (e.g., housing element, fair housing, Housing Accountability Act, etc.) For more information, please contact us at ComplianceReview@hcd.ca.gov.
Submit Potential Violations to HCD for Review
HCD accepts requests for review of potential violations. All comments submitted to HCD are subject to the California Public Records Act.
Send email requests to: ComplianceReview@hcd.ca.gov.
Send U.S. postal mail requests to:
Megan Kirkeby, Deputy Director
Department of Housing and Community Development
Division of Housing Policy Development
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833