The Week in Land Law - eviction moratorium litigation and legislation, OCOG sues HCD
We’ve survived another wild week in California. Here’s what happened in land law:
Legislation
AB 832 enacted June 28. It extends California’s eviction moratorium through September 2021 and revises the rent relief program. See more here here and here.
Clears rent debt for low-income Californians who have experienced economic hardship due to COVID and will increase cash assistance to low-income tenants and small landlords under the state's $5.2 billion rental assistance program.
Rental assistance applications must be filled out by both tenants and landlords. If both a landlord and a tenant apply for funds, the money will go directly to the landlord. It will only go to the tenant if the landlord declines to participate in the program. If your local government created its own rental assistance program, your process may be different.
SB 10 passed out of the Assembly’s Housing and Community Development Committee.
SB 10 would authorize a city or county to pass an ordinance that is not subject to the California Environmental Quality Act (CEQA) to zone any parcel for up to ten units of residential density if the parcel is located in a transit-rich area or an urban infill site. See more here.
Case Law
Alabama Association of Realtors v. Department of Health and Human Services, 594 U. S. ____ (2021). Keeps the federal eviction moratorium in place through July 31, 2021. Kavanaugh sends message that congressional authorization is needed for any further moratoria.
An Alabama realtors' group sought to lift a federal ban on evictions issued in September 2020 by CDC. A District of Columbia federal judge agreed with the Realtors but stayed the ruling pending appeal. The D.C. Circuit Court of Appeals denied the Realtors' request to lift the stay of that ruling. The Realtors applied to the US Supreme Court to lift the stay, and the Supreme Court denied – the effect of which is to leave the eviction moratorium in place through July 31.
In his concurring statement, Justice Kavanaugh writes:
"I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Pending Litigation: Orange County Council of Governments v. Velasquez, et al. OCOG sued the California Department of Housing and Community Development, challenging HCD’s application of California’s Regional Housing Needs Assessment (RHNA) statutes. In other words, OC contends the State’s demand for new housing is unlawfully high for the region.
OCOG sued HCD after the larger regional council of governments (Southern California Association of Governments, aka SCAG) declined to challenge HCD’s RHNA allocation.
OCOG encourages any jurisdiction, whether in Orange County or elsewhere within the SCAG’s member Counties (Imperial, Los Angeles, Orange, Riverside, San Bernardino and Ventura), to join in the suit. According to a statement from the OCOG chairman:
“We believe that HCD wrongly applied state law when determining each region’s housing quotas, using bad data that ultimately led to more housing than we need or can sustain. As Chair of OCCOG and an Anaheim City Council Member, I’m committed to common-sense solutions to provide more housing opportunities at all income levels. I’m also committed to ensuring that we as local elected officials continue to have a voice to protect neighborhoods in Orange County and preserve our local control.”
