By RIA ROEBUCK JOSEPH
THE CENTER SQUARE CONTRIBUTOR
(The Center Square) – California Attorney General Rob Bonta issued a letter of warning to the City Attorney of Huntington Beach, Michael Gates advising him the proposed ordinance up for consideration by Huntington’s City Planning Commission on Feb. 14, which will “prohibit all applications to build affordable housing projects under the so-called ‘Builder’s Remedy’ provided for by the Housing Accountability Act (HAA),” is contrary to state law. Mr. Bonta “urges you to reconsider your position … and stands ready to take action to enforce California’s housing laws if necessary.”
Huntington Beach is the fourth largest city in the County of Orange. The recent general election brought sweeping change to its city council as residents overwhelmingly voted for a slate of candidates who delivered a unified message and made “a contract with Huntington Beach.” Within their message was the issue of Huntington Beach actively defending its charter status to “Home Rule” challenging Sacramento’s overreach and retaining local governance through its city council. In opposing state mandated high density housing as a means to address homelessness, the voter’s opted for pushing forward a comprehensive plan presented by the candidates. It was a message which resonated with the population.
One candidate who emerged successful in the election, Tony Strickland put it this way following his win, “We talked about fighting against high-density housing, and we said if you elect all four of us, we’re going to push for Michael Gates to sue the state based on those faulty numbers. We talked about our 90-day plan on homelessness, and incorporating nonprofits and church organizations to help solve that problem. We had a message that resonated with the people of Huntington Beach,” he told the Los Angeles Times.
Now it appears Mr. Gates won’t have to sue the state as the state has already begun monitoring Huntington Beach’s city council and their proposed Zoning Text Amendment No. 2023-001 exempting the city from the “Builder’s Remedy.” The Builder’s Remedy, part of the state’s Housing Accountability Act (HAA), allows builders to bypass zoning codes and the general plans by including affordable housing in its project, and could only be affected if the city fails to have housing element compliance. The Huntington Beach City Council issued the directive in December 2022 for Mr. Gates to draft the Zoning Text ordinance.
“The City of Huntington Beach’s proposed ordinance attempts to unlawfully exempt the City from state law that creates sorely needed additional housing for low- and moderate-income Californians. With today’s letter, we’re putting the City on notice that adopting this ordinance would violate state law. I urge cities to take seriously their obligations under state housing laws. If you don’t, we will hold you accountable,” Mr. Bonta said in a released statement.
But Mr. Bonta’s letter is not the first to warn the city. In February the Department of Housing and Community Development (HCD) issued a letter to Huntington’s City Planning Commissioners explaining how adoption of the ordinance would violate the HAA and other housing laws, among other issues.
They cited cases that demonstrate rulings “where state housing law preempts conflicting charter city ordinance despite the Home Rule doctrine” and “if a matter is of statewide concern, then charter cities must yield to the applicable general state laws regardless of the provisions of its charter.”
It was not quite clear from the text how the ideas of “Home Rule” and “a yield to the applicable general state laws” could be mutually true at the same time.
In one of the cited cases where a community association challenged the city of San Diego’s approved permit to allow developers to demolish 1,023 apartments and rebuild 2,287 condominium units increasing the density from 8 dwelling units per acre to a proposed 43 and 1/2 dwelling units per acre, the court found:
“In enacting Government Code, detailing requirements for the mandatory housing element, the Legislature declared the availability of housing is a matter of “vital statewide importance” and “the early attainment of decent housing and a suitable living environment for every California family is a priority of the highest order.”
To attain the state housing goal, the Legislature found, required “cooperative participation” between government and the private section, cooperation among all levels of government and use of state and local governmental power “to facilitate the improvement and development of housing” for “all economic segments of the community.” The Legislature recognized that each local government in adopting a housing element must also consider economic, environmental and fiscal factors as well as community goals set forth in the general plan.”
The Apartments were over 30 years old and housed tenants over the age 62, of low or moderate income.
The residents of Huntington Beach expressed a clear choice by their votes, reflecting their desire to address housing needs through locally decided remedies debated by its city council but the battle to determine the future of their city’s development appears imminent.
As the state pushes to solve the housing shortage, Huntington Beach will be well advised to heed the court’s view that local government solutions should approximate the Legislature’s.
“Absent a complete failure or at least substantial failure on the part of a local governmental agency to adopt a plan which approximates the Legislature’s expressed desires, the courts are ill-equipped to determine whether the language used in a local plan is ‘adequate’ to achieve the broad general goals of the Legislature.”
The statement from the California Department of Justice, issued by Mr. Bonta said, “On February 7, 2023, the City Attorney transmitted the proposed ordinance, along with a legal memorandum, for the city’s Planning Commission to review. Today, in coordination with the Attorney General, HCD sent another letter to the city’s Planning Commission reiterating its position after reviewing the proposed language of the ordinance,”
It reiterated that the City of Huntington Beach should be proactively seeking to permit for more affordable housing projects, not restricting and stigmatizing them. The California Department of Justice, under Mr. Bonta announced the creation of a Housing Strike Force in 2021.
The conflict between a city’s desire for self-determination and the state’s desire to quickly build affordable housing amidst a homelessness crisis is just now unfolding.
“California is facing a housing crisis of epic proportions, and it’s going to take all of us, doing our part, to ensure that Californians have access to affordable housing,” Mr. Bonta said.
