Though the once-spirited effort by a handful of San Bernardino County cities to prevent the State of California from usurping a substantial portion of local land use authority has been abandoned, several of their counterparts in Orange County are appealing to the California Supreme Court consider countermanding the state’s mandate that Southern California cities and counties accommodate 1.34 million new homes before the end of the decade.
Traditionally in California and most of the country, land use authority – decisions on what can be built, to what standards and intensity – is exercised at the local, i.e., city or county level. Federal and state governments set building standards with regard to construction and things like fire safety and have qualified autonomy on development issues on state-owned and federal-owned land. Planning processes take place generally in California at the municipal and county levels, such that within city/incorporated town limits, that control is exercised by the cities and towns themselves.
Under this arrangement, theoretically and for the most part practically, through their elected leadership local residents had some level of control with regard to the tenor of development, its intensity, its quality, its mix, its character and nature, and its density.
In recent years, the cost of housing in California has escalated dramatically beyond what was already a significant inflationary scale and the incidence of homelessness has increased. State officials in California, seeking to induce more and intensified home building, over the past nine years have been accommodating of the development industry. In 1969, the California legislature mandated that cities and counties carry out a regional housing needs assessment, referred to by the acronym RHNA, to allow them to meet the housing needs of people at all income levels in their respective communities. Over the following decades, the state government granted itself greater power in forcing local jurisdictions to meet perceived housing needs by imposing consequences for jurisdictions if mandated housing wasn’t built.
There was tension over these mandates, since local governments do not themselves, even in cases where officials are pro-development in orientation, undertake development themselves but merely approve or facilitate the private sector in its pursuit of construction projects. Moreover, in some jurisdictions, neither the existing population nor the politicians who represent them see unbridled development as a benefit to the community.
In seeking to accommodate both former Governor Jerry Brown and current Governor Gavin Newsom and the California legislature in their desire to redress the state’s perceived housing crisis, the California Department of Housing and Community Development has pushed for local jurisdictions to adhere to the developmental mandates derived through the survey of housing needs carried out throughout the state. Collated into a document given the title Regional Housing Needs Allocation, those figures provide the basis of the mandates that state officials impose on all jurisdictions, including cities and unincorporated county areas in California, demands that those entities include in their general plans and zoning codes an accommodation of the number of dwelling units specified in the assessment, meaning each city must allow the construction of at least the number of homes the state says is its share of the burden to meet housing demand statewide.
In this way, in what is widely seen, both positively and negatively, as a daring social experiment, the State of California has, through Government Code §65580, required each municipality in the state to assist in alleviating the homelessness crisis by complying with what the California Department of Housing and Community Development deems to be each city’s housing responsibility.
Under this so-called Regional Housing Needs Allocation process, a determination is made of what number of dwelling units according to affordability type each community is to accommodate over an eight-year period. The expectation is that those cities will comply by granting developers clearance to build the specified number of houses within that span.
Based upon the numbers formulated for the state by the Southern California Association of Governments – a joint powers authority consisting of Imperial, Riverside, San Bernardino County, Orange, Los Angeles and Ventura counties – as part of the Regional Housing Needs Allocation effort, those six counties were told they would need to plan on accommodating 1.34 million residential units in the eight-year period ending in 2029. Under that mandate, San Bernardino County must accommodate the construction of 138,110 new homes between the end of 2021 and the end of 2028, including 35,667 intended for very-low-income homebuyers; 21,903 for low-income homebuyers; 24,140 for moderate-income homebuyers and 56,400 for above moderate-income homebuyers. Los Angeles County is expected to make way for 812,060 new homes in the same time period. The mandate also includes 183,861 homes in Orange County

Specifically, under the Regional Housing Needs Allocation, known by its acronym RHNA, Adelanto is being called upon to allow the construction of 3,756 residential units; Apple Valley 4,280; Barstow 1.516; Big Bear Lake 212; Chino 6,961; Chino Hills 3,720; Colton 5,420; Fontana 17,477; Grand Terrace 628; Hesperia 8,135; Highland 2,508; Loma Linda 2,048; Montclair 2,586; Needles 87; Ontario 20,805; Rancho Cucamonga 10,501; Redlands 3,507; Rialto 8,252; San Bernardino 8,104; Twentynine Palms 1,044; Upland 5,673; Victorville 8,146; Yucaipa 2,859; and Yucca Valley 748. The unincorporated areas of San Bernardino County are supposed to absorb 8,813.
There is a difference of opinion among the population as to whether intensifying residential development is a sensible response to the general situation. Some have argued that more homes are needed to accommodate the greater influx of people. Others, citing what they consider to be a diminution in the quality of life as the population increases, argue that efforts to limit or end population growth in California is the more reasonable approach to the issue. They propound that there is an inadvisability to, indeed what some have come to perceive as the absurdity of, allowing Sacramento to dictate land use policy throughout the 163,696-square mile state. Though the majority of municipal officials in California accept the state’s asserted authority in this area, up and down the state there has been protest of, and in some cases resistance to, these mandates. Land use policies – from zoning to development standards to architectural guidelines to height restrictions and limitations on density – have evolved gradually over a period of more than a century at the local political levels in response to immediate and regional concerns and conditions. These policies have come to reflect the character of the varied communities and the values, attitudes and expectations of residents/citizens who inhabit those areas. To force not only the individual local governments of the state but the citizens that live in those communities to dispense with standards and polices that have been carefully and methodically developed over decades and generations in favor of meeting what are relatively short-term goals to address the housing crisis and the burgeoning numbers of homeless constitutes a myopic fix to a problem that exists in a much larger context, some social scientists, governmental analysts, politicians and California residents have observed. The imposition of that fix, entailing the construction of residential projects of a vastly higher density than what has been the previous norm, is very likely to result in undesirable consequences that will remain in place and mar the communities in question for decades or even centuries to come, those opposed to the mandates assert.
In San Bernardino County, the city councils of Fontana, Chino Hills, Chino and Barstow were brave enough to challenge the state in 2020, prior to the finalization of the RHNA to cover 2021 until 2029, asking that the number of homes they were being called upon to accommodate be lowered. Barstow asked the state to cut its 1,516 house-building mandate by 58 percent to 635; Chino Hills requested 1,797 units in lieu of 3,720, a 52 percent reduction; Chino wanted a 49 percent cut from 6,961 to 3,564; and Fontana insisted that the 17,477 units it was being asked to accommodate was 30 percent too optimistic, requesting that its mandate be reduced to 10,563.
The California Department of Housing and Community Development did not budge in its demands, conveying that the government does not negotiate with scofflaws, renegades, terrorists or any entity or anybody which does not respect the rule of law. Lest anyone forget, California Government Code §65580 is the law, those city officials were warned.
According to the preamble for Government Code §65580-65589.8, “The Legislature finds and declares as follows: (a) The availability of housing is of vital statewide importance, and the early attainment of decent housing and a suitable living environment for every Californian, including farmworkers, is a priority of the highest order.”
Those who are still intent on undercutting the California Department of Housing and Community Development down to size, however, see in the legal developments relating to two lawsuits launched by residents of the City of Berkeley against the University of California, Berkeley a glimmer of hope that state government cannot use it authority and imperiousness to force citizens to accept standards that are antithetical to their collective values.
When the University of California, Berkeley undertook to increase its enrollment by 8,000 students between 2007 and 2017, a move which resulted in the lion’s share of those students looking to find housing within the already densely packed 110,000-population 10.43-square mile city, a group of Berkeley residents formed the organization Save Berkeley Neighborhoods. When the university in 2018 and 2019 gave indication that it intended to up its number of students to around 42,000 during the 2020-21 academic year and to 45,050 students during the 2022-23 academic year, Save Berkeley Neighborhoods prepared a legal challenge against the university and ultimately filed suit, alleging the university by increasing student enrollment had failed to honor the California Environmental Quality Act by disregarding a number of quality of life issues affecting Berkeley residents, including crowding, housing, homelessness, traffic and noise..
In August 2021, an Alameda County Superior Court ruled in favor of Save Berkeley Neighborhoods, suspending a proposed faculty housing and classroom construction project, and ordered the campus to limit enrollment to its 2020-2021 level of just over 42,000 students.
The university appealed that ruling and in an expedited progression through the appeals process, the matter came before the California Supreme Court within five months. In March 2022, the California Supreme Court upheld the Alameda Superior Court, ordering the University of California, Berkeley to freeze its undergraduate enrollment at 2020-21 levels, meaning it would have to accept at least 3,000 fewer students than planned for the upcoming academic year.
The California Legislature undertook to bypass that setback for the university, introducing and then passing virtually within a week legislation, Senate Bill 118, that stipulated college enrollment falls outside the definition of a “project,” which, if it were so defined would require being addressed and mitigated under the California Environmental Quality Act. Days after being taken up, Senate Bill 118 sailed through the Assembly and the California Senate and was signed into law by Governor Gavin Newsom. It went into effect immediately and retroactively, making immediately applicable to the circumstance in Berkeley.
Nevertheless, another collection of Berkeley residents, under the aegis of the group Make UC a Good Neighbor, had filed a California Environmental Quality Act lawsuit that paralleled some of what was in the Save Berkeley Neighborhoods action, challenging UC Berkeley’s long-range development plan and the university’s intent to transform People’s Park, the historic site of anti-Viet Nam War demonstrations in the 1960s and 1970s into a student housing facility. In February, a state appellate court rejected much of the challenge to the University of California, Berkeley’s development plan but did make a finding that the University had to better define and refine its dormitory project at the People’s Park site. In that ruling, the court held that the University of California, Berkeley “failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus, a longstanding problem that the environmental impact report improperly dismissed as speculative.”
That decision is being appealed to the California Supreme Court. If it is upheld, as most legal analysts believe it will, it will leave open a chink in the armor of state government mandates for the accommodation of residential development without regard to a wide range of land use and environmental considerations, as has been the trend with the legislature over the last nine or so years.
In the hands of skillful legal representatives of local governmental entities such as cities which are motivated to preserve their land use authority to prevent the state from usurping their control over the character of their communities and which have the financial means to wage such legal efforts, a Supreme Court ruling that government-mandated housing projects are subject to all aspects of the California Environmental Quality Act could lead to the unraveling of Government Code §65580-65589.8 and the California Department of Housing and Community Development’s imposition of Regional Housing Needs Allocations.
While the city councils of Fontana, Chino Hills, Chino and Barstow have now essentially given up on their challenge of the California Department of Housing and Community Development with regard to the RHNA mandates, the Orange County Council of Governments has proceeded with asserting the concept of local land use decision-making rights. Despite some rough sledding in making that case, the board for the Orange County Council of Governments on August 24 unanimously voted to appeal a ruling by the Second District Court of Appeals upholding the LA County Superior Court in its November 2021 dismissal of a suit brought by the Orange County Council of Governments and co-plaintiffs Cerritos, Downey, Lakewood, Redondo Beach Torrance and Whittier in which they questioned the grounds and applicability of the Regional Housing Needs Assessment. The trial court held that the expansion of the authority of the 1969 RHNA law that took place in 2004 with adoption of amendments to the code making those mandates enforceable were done in a constitutional manner, rendering a challenge of the law in court moribund.
Orange County officials, however, contend the the California Department of Housing and Community Development did not itself adhere to the standards in the RHNA law in setting the numbers.
Fred Galante, who is the city attorney in Chino and was formerly the city attorney in Rialto, is the attorney for the Orange County Council of Governments.
He maintains the Second District Court of Appeals was wrong on the facts and the law in upholding the Los Angeles Superior Court, as the California Department of Housing and Community Development failed to follow the applicable state statute in reaching the allocations.
Galante seemed to acknowledge that the state has the authority to make projections of housing building needs. An element of local control exists in the law, nonetheless, he implied.
The council of governments has until September 5 to take the matter up with the California Supreme Court. Galante appeared to be headed in that direction.
The Supreme Court has complete autonomy in deciding whether to hear the matter or letting the appeals court’s decision stand.
State officials insist they have the authority to mandate housing allocations which will solve the state’s housing crisis.
A ruling favorable to the Orange County Council of Governments could open the way for cities such as Fontana, Chino Hills, Chino and Barstow, which have previously challenged the RHNA numbers, to make a case against what they are being called upon to accommodate.
-Mark Gutglueck