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A recent decision from the California Court of Appeal (Fourth Appellate District) provides an opportunity to compare housing policy in our neighboring state. Kennedy Commission v. Superior Court of San Diego County, decided last December, arose out of the enforcement efforts to force the city of Huntington Beach to come into compliance with state housing laws.

California requires every local government to amend its plan to accommodate its regional allocation of housing needs for each housing category. Those needs are determined through state housing agency projections and the regional council of government (COG) for the area that allocates the 鈥渓ocality鈥檚 share of the regional housing need.鈥� The local plan must then identify adequate sites for housing to meet that allocation, The result must then be reviewed by the state housing agency and, if it complies with state housing laws, the local government must proceed with adoption.

In Kennedy Commission, the state concurred that the city鈥檚 housing element was sufficient, but the city then failed to take the final step of adoption. When the California Department of Housing and Community Development sent a notice of violation in 2023, the city responded by filing a federal lawsuit challenging the constitutionality of the housing law. The city contended that the affordable housing share need allocation was inflated and that additional affordable housing units would harm the environment, in violation of the California Environmental Quality Act (CEQA), and the city鈥檚 suburban character. The Kennedy Commission, a housing advocacy entity, then sued to enforce the law, and California鈥檚 attorney general filed similar separate litigation.

The state sought an order mandating that the city adopt compliant housing measures. The city responded by filing cross-petitions arguing that the language of the state law authorizing the court to mandate adoption of those measures did not apply to charter cities both under state law and that the legislation violated the home rule provisions of the California Constitution. The court rejected both arguments. First, it pointed out that the language of state law mandated the adoption of plans that included the housing measures and for enforcement applied to charter and non-charter cities alike.

Regarding the home rule conflict, the court focused on whether the state law was reasonably related to the resolution of a statewide concern and narrowly tailored to avoid unnecessary interference. It found the obligation to provide sufficient lands for housing and the ability of the courts to accelerate and ensure compliance was reasonably related to the state鈥檚 interest in promoting the supply and affordability of housing statewide and was not an unduly oppressive burden.

In support of its decision, the court emphasized state legislative declarations of the housing crisis and the urgency of providing a remedy and the use of the state鈥檚 Regional Housing Needs Analysis to assess housing supply and needs and the allocation of future housing among local governments. On remand, the trial court found a violation of California鈥檚 housing statutes and ordered the city to comply with them. Moreover, the California and U.S. supreme courts subsequently denied review. Compliance is now imminent.

The California system is similar to the structure of housing policy in Oregon but with some key differences. Both states have a profound housing crisis, especially with respect to affordable housing. Both states try to measure existing housing, future needs, and the role of planning and zoning in assessing and meeting those needs. Both states require local government planning and land use regulations to carry out those plans and assert state powers to assure that state policies will be carried out locally. However, neither state requires housing to be built 鈥� only provided for in local plans and regulations.

In the absence of a state agency for planning like Oregon鈥檚 Land Conservation and Development Commission (LCDC), California has developed the Regional Housing Needs Analysis as its process for increasing housing units based on state-provided housing projections. Local governments are ultimately required to amend their plans and land use regulations to accommodate the assigned allocations. The Kennedy Commission litigation shows a more recent commitment to put teeth into what may historically have been treated as a hortatory paper exercise.

LCDC, on the other hand, has enforcement authority and, with its new Housing Accountability and Production Office, may suspend local zoning regulations and instead require that local zoning decisions comply with a state model code. Another distinction is that the only forum for resolving housing disputes such as these in California is the court system. This might explain why the Huntington Beach odyssey took over four years to resolve. Oregon has its Land Use Board of Appeals that reviews plans for conformity with state law, allowing review to occur in a matter of months.

In both states the pathway toward increasing housing opportunities since 2019 has not been without controversy or difficulty. Frequent disagreements occur over the wisdom or effectiveness of frequently changing state housing policies pre-empting local government regulatory authority in the hopes of expediting and reducing the cost of housing. From middle housing mandates, mandatory adjustments, limiting design options or public involvement in land use proceedings, it is too soon to say whether, and to what extent, they will work. What is clear is that having an enforcement authority that is efficient, predicable and provides for implementation of state housing policy in the meantime are all important tools.

It is indeed unfortunate that the funds put into four years of legal wrangling could have been better spent on construction of affordable housing. The Kennedy Commission decision suggests that cities will have difficulty overcoming statewide housing policies and that if they disagree with those policies, they should consider other ways to express that disagreement.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.