In response to the state’s severe housing shortage, California legislators have been quietly strengthening its housing mandate process for local governments. I’ll discuss the new policies and what the future will bring on a webinar today at noon with outgoing California Department of Housing and Community Development director Ben Metcalf.
Metcalf’s agency takes the lead in assigning housing goals to each region of the state. Those regional entities in turn assign housing allocation numbers to local governments in the jurisdiction, which must plan for this new housing in four-year cycles.
Until recently, the process was easily gamed by local governments, with no penalties for non-compliance. But legislators have now added significant enforcement powers.
As examples of this beefed-up process, the state now requires streamlined local approval for housing projects in jurisdictions that are not producing enough housing according to these mandates. The state has also been linking transportation funding to local compliance. And perhaps most prominently, Governor Newsom is suing local governments like Huntington Beach for its inaction.
To learn more, you can register this morning for the noon-1pm webinar, which is co-sponsored by the California Lawyers Association and the Council of Infill Builders. MCLE credit is available for attorneys, and registration is free for members of the Council of Infill Builders. Hope you can join!
On Friday, California sued Huntington Beach over the city’s NIMBY rejection of new housing and overall non-compliance with state housing laws. But it turns out the city was already suing California over its housing streamlining law, SB 35 (Wiener, 2017), in a suit filed on January 17th (City of Huntington Beach v. State of California, Case No. 30-201-01044945-CU-WM-CJC). The lawsuit could be important for resolving a significant question about how much the state can intrude on local land use authority. And my guess is that it will not end well for Huntington Beach’s NIMBYs and their elected official allies.
SB 35, the state law that Huntington Beach is suing over, requires streamlined permitting for certain housing projects in jurisdictions like Huntington Beach, which are behind on meeting state-derived housing targets. Huntington Beach alleges that because it’s a “charter city” under the state constitution, SB 35 shouldn’t apply to it (and others like it).
So what’s a “charter city”? The California Constitution allows cities to become charter cities in order to pass local laws that supersede state laws under certain conditions. Of California’s 478 cities, 108 are charter cities.
Specifically, Huntington Beach officials allege that SB 35’s housing streamlining regime interferes with their “municipal affairs” of land use decision-making, which are otherwise protected from state preemption absent certain circumstances.
As a result, the case will hinge on how the court interprets “municipal affairs,” as defined in the state constitution. As the League of California Cities helpfully describes, charter cities have sovereignty over at least these four areas of “municipal affairs” under the constitution:
- “city police force”
- “subgovernment in all or part of a city”
- “conduct of city elections”
- “the manner in which . . . municipal officers [are] elected.”
Notably, “land use” is not included in the list. And yet Huntington Beach’s attorneys allege in the complaint that their land use sovereignty should be considered a “municipal affair.” Historically, it’s been left up to the courts to determine if land use counts, and they have typically ruled that land use does in fact constitute a “municipal affair.”
But there’s a big exception: when there’s a strong state interest requiring local preemption. In this case, it’s hard to argue that the housing shortage is not a matter of serious statewide concern requiring state intervention. Furthermore, local NIMBY restrictions on development have been a central factor in the lack of production statewide, including restrictive zoning and byzantine permitting processes.
Given the overriding importance of housing production to stabilize prices across the state, my guess is that Huntington Beach leaders will have a hard time making their case in court that this housing streamlining law shouldn’t apply within their borders. And an adverse decision for them would solidify the law’s applicability to the other 107 charter cities in the state.
If they lose this fight, NIMBYs and their allies will still have a few other means to push back against state laws to boost housing production. But they will lose an important judicial avenue with an adverse decision. If so, those seeking more affordable places to live in the state will be better off as a result.
