The Governor recently signed AB 2292, adding section 65863 to the Government Code, which exposes local governments to lawsuits if they approve a “down zoning” without ensuring that other lands are sufficiently "up zoned" in a community so that there is no net loss of multifamily-zoned land.
Under existing law, cities and counties may, in certain circumstances, reduce residential density lower than the density that was utilized by the Department of Housing and Community Development in determining compliance with housing element law. In other words, cities and counties may approve zoning changes that would result in less multifamily housing. However, under section 65863, effective January 1, 2003, such a reduction may only occur if the city or county makes written findings, supported by substantial evidence, that (1) the reduction is consistent with the adopted general plan, including the housing element; and (2) the remaining sites in the housing element will accommodate the jurisdiction’s share of the regional housing need. Moreover, if a reduction in residential density would result in the remaining sites being inadequate to accommodate the jurisdiction’s share of the regional housing need, the jurisdiction may, nevertheless, reduce the density if it identifies additional available sites so that there is no net loss of multifamily-zoned land.
Section 65863 also allows courts, until January 1, 2007, to award attorney fees to a plaintiff or petitioner who opposes a housing development, if the court finds that the city or county violated section 65863. We recommend you consult with legal counsel on any applications received after January 1, 2003 involving a zone change to a lower density.