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Allen Matkins Leck Gamble Mallory & Natsis LLP Attorneys at Law Santa Ana City Council June 20, 2023 Page 2 (B) No net loss of the potential residential density of housing affordable to lower income households in the jurisdiction. (C) Affirmative furthering of fair housing. The Proposed Action is Contrary to State Law We are aware that the City Council will be discussing the proposed resolution with the City Attorney as part of Closed Session Item No. 2 (Conference with Legal Counsel — SIGNIFICANT EXPOSURE TO LITIGATION pursuant to Government Code Section 54956.9(d)(2)). We understand that both the California Attorney General and the California Department of Housing and Community Development ("HCD") have intervened -- for good reason. The proposed resolution is contrary to state law, for the reasons set forth below, among others. The Proposed Action is Premature As acknowledged in the staff report prepared by the City Planning and Building Agency ("City Planning"), AB 2011 is not yet operative. AB 2011.clearly states: "This act shall become operative 02-1 July 1, 2023." Therefore, any attempt by the City Council to exempt parcels pursuant to the cited non -operative Government Code provisions will be legally ineffective. A Detailed Site Analysis is Required There is no evidence that City Planning has confirmed that the proposed "replacement" parcels meet the criteria described in subdivisions (b) and (e) to (h), inclusive, of Section 65912.121, as required. These include specific siting requirements for housing development projects under AB 2011, including but not limited to the requirement that the project site "satisfies the requirements in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4." (Gov. Code § 65912.121(g).) That Government Code section, which was added by SB 35 (2017) and is cross referenced in multiple state housing laws, includes extensive site requirements. For example, we question whether City Planning has confirmed that none of the "replacement' parcels are habitat for protected species. AB 2011 (pursuant to SB 35) provides that the housing development project cannot be located on a site that is any of the following: • Habitat for protected species, including candidate species, as specified. • Either prime farmland or farmland of statewide importance, as specified. • Wetlands, as specified. • Within a high or very high fire hazard severity zone, as specified. 02-2