The Marin Post

The Voice of the Community

Blog Post < Previous | Next >

CVP

Unbounded Bullying by HCD

Posted by: Bob Silvestri - January 14, 2024 - 9:35 AM PST


The stated mission of the California Department of Housing and Community Development (HCD) is to,

“Promote safe, affordable homes and vibrant, inclusive, sustainable communities for all Californians. HCD helps to provide stable, safe homes affordable to veterans, seniors, young families, farm workers, tribes, people with disabilities, and individuals and families experiencing homelessness.”

As the state’s official housing agency, HCD oversees a variety of programs and offers housing grants, loans, and investments. As the HCD website notes,

“Housing is one of the most-important parts of any community and the way we plan for housing has wide-reaching impacts on the environment, education, health, and the economy. HCD plays a critical role in the housing-planning process, which was designed to ensure that communities plan for housing that meets the needs of everyone in California’s communities. HCD works with each of California’s regions to determine their housing needs and reviews each city or county’s housing plan (also known as the “housing element” — part of each city or county’s “general plan”) to determine whether or not their housing plan complies with state law.”

This is their marketing pitch: portraying HCD as an approachable government assistance and support agency, ready and willing to do what it takes to work with California cities, counties, communities, and families. The reality of how HCD treats local city and county government stands in stark contrast to this carefully crafted image.

The Housing Element

The Housing Element is one of the many parts of the General Plan. California law requires that a General Plan include a minimum of nine state-mandated elements. These are Land Use, Open Space, Conservation, Housing, Environmental Justice, Circulation, Noise, Air Quality, and Safety. But to the news-consuming public HCD’s most prominent role is the creation of the Regional Housing Needs Allocation (the “RHNA” housing quotas) and the certification process for city and county Housing Elements.

The Housing Element certification process is, itself, highly controversial, with different agencies issuing different guidance and rules. And, in the 16 years since the passage of SB 375 and 44 years since the first Housing Accountability Act, arguably the first major state housing law, the record shows that the dozens of laws passed during that time have pretty much done nothing to alleviate California’s “unaffordability.”

But with all HCD’s haranguing about California cities and counties being “out of compliance” with state housing laws--because their Housing Elements have not been “certified” by HCD--the truth of the matter is more nuanced.

HCD claims that only a final draft of a Housing Element that has been reviewed and commented on by HCD and has been adopted by the local agency before a specified due date will considered to be “substantially compliant.” They emphasize the pre-eminence of their certification of a city’s Housing Element, on their website, as the very definition of that compliance, when they state,

“A jurisdiction does not have the authority to determine that its adopted element is in substantial compliance but may provide reasoning why HCD should make a finding of substantial compliance. In addition, a jurisdiction is “in compliance” as of the date of HCD’s letter finding the adopted element in substantial compliance.’ [Emphasis added]

However, there is zero evidence and no on-point case law to substantiate this claim. As explained in “Save Dominican Valley explains the "Builder's Remedy," the determination of whether a city’s Housing Element is or is not “substantially compliant” with state housing law, and therefore eligible for certification, is not specifically defined in state law. And that determination is not up to a City, a developer, or HCD to determine, but is the unarguable jurisdiction of due process in the courts.

Even YIMBY Law, the staunchest opponent of local control of planning and zoning, admits that the determination of whether or not a Housing Element adopted by a city is “substantially compliant” with state housing law is a “matter of law.” They state that “only a court can ultimately decide whether a housing element “substantially complies.” (See Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1191.)

The California Constitution and a City’s General Plan

The California Supreme Court has held a city’s General Plan to be “the constitution for all future development,” in that city (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540.)This has served as a basic tenet of the California law since that time and the general rule has been for courts to defer to local agencies’ reasonable interpretations of the purposes and intentions of their own General Plan and other regulations.

However, with each passing “housing cycle” (the 8-year period covered by the programs and development opportunities described in each Housing Element), HCD’s interactions with local city and county governments have become more brazen and antagonistic and their communications more reliant on bullying and intimidation tactics.

HCD and the City of Belvedere

In September of 2023, in a highly critical “Letter of Technical Assistance” to the City of Belvedere about that city’s Housing Element and decisions about a particular pending development proposal, Shannan West, the HCD Housing Accountability Unit Chief, ends her comments with this paragraph;

“HCD reminds the City that HCD has enforcement authority over the HAA, SDBL, State Housing Element Law, among other state housing laws. Accordingly, HCD may review local government actions and inactions to determine consistency with these laws. If HCD finds that a local government’s actions do not comply with state law, HCD may notify the California Office of the Attorney General that the local government is in violation of state law. (Gov. Code, § 65585, subd. (j).) HCD recognizes the challenge of interpreting ever-changing housing and land use laws and appreciates the opportunity to provide technical assistance." [Emphasis added]

This not-so-subtle threat rests in a soup of hyperbole and misconstruance of the law. Worse, in her letter, Ms. West makes a startling leap regarding HCD’s authority over a duly elected local government’s authority to create and interpret its own General Plan.

Let’s unpack this one piece at a time.

Enforcement authority

“Law enforcement," under California law is the authority of

"The California Attorney General: The California Department of Justice is a statewide investigative law enforcement agency and legal department of the California executive branch under the elected leadership of the California Attorney General (AG) which carries out complex criminal and civil investigations, prosecutions, and other legal services."

Per California Code, 1.32.030 General Enforcement Authority,

"The enforcement official shall have the authority and powers necessary to gain compliance with the provisions of this code and applicable state codes. These powers include the power to issue notices of violation and administrative citations, inspect public and private property, and use whatever judicial and administrative remedies available under this code or applicable state codes. (Ord. 586 § 1 (part), 1998). "

And, under California Code, Government Code - GOV § 7284.4

"For purposes of this chapter, the following terms have the following meanings: (a) “California law enforcement agency” means a state or local law enforcement agency, including school police or security departments.”

HCD can make any claims of authority they want but they do not qualify under any of these definitions of "enforcement." Housing law enforcement is not as simple as a policeman writing you a speeding ticket.

Other than the fact that HCD is considered an expert in state housing law (but only one of many such experts), their much-vaunted “authority” turns out to be no greater than any other state or government agency or even any citizen, all of whom have the "power" to bring a situation to the attention of the State Attorney General or local District Attorney, who ultimately decide whether to bring charges for possible prosecution.

The mechanism for prosecution is now in the hands of the Attorney General’s “Housing Strike Force,” a title that sounds like it was made up by George Lucas for a new Star Wars movie. (It's been, more recently, renamed the "Housing Justice Team," which now sounds more like a DC Comics' superhero movie.)

Among its powers are,

Of note, HCD is not a member of the Strike Force, nor are they mentioned or referred to in the documentation or related legislation. However, even in the event of the AG bringing charges against a city, the ultimate determination of whether or not a city is or is not guilty as charged and the prescribed enforcement penalties for being “non-compliant” are up to a judge in a court of law.

In other words, HCD’s braggadocio is just so much hot air.

Interpreting state housing law vs. interpreting local government regulations

HCD is certainly vested with the authority to interpret state housing laws and “review local government actions and inactions,” in the context the creation of their Housing Element, and advise local agencies accordingly. But it is another thing entirely to construe this to mean that HCD has the authority to step inside locally elected government’s proprietary domain, to take sides in the internal business of a city, and interpret the intentions and meaning of a city’s General Plan (its “Constitution,” which the Housing Element is a part of) and threaten to force that opinion on them.

But, this is what has transpired in the case of Belvedere.

Without going into great detail, in this instance, a private developer presented a project that does not conform to the City’s existing General Plan or Zoning Ordinance and demanded project approval based on a novel and legally unsupportable interpretation of the city’s codes, alleging that “inconsistencies” in the city’s General Plan, Zoning Code, Land Use Element Maps, and Housing Element afforded his project ‘by right’ zoning: an interpretation that had been resoundingly refuted, repeatedly, by both public and private legal counsel.

Yet, HCD took it upon itself to meet with the private developer and then, without the benefit of doing any research of their own, threaten the city using the same discredited, quasi-legal arguments proffered by the developer’s lawyers, on an issue that was completely separate from the determination of city’s Housing Element’s “consistency with state housing laws.” Worse still, based solely on conversations with the developer, HCD alleged that the City was delaying the approval process over a CEQA issue, even though the record indicates that the delay was requested by the developer.

HCD’s tactics here have been grossly inappropriate and, to the best of our knowledge, unprecedented. We know of no instance or legislation supporting HCD’s action nor any published case law where HCD has successfully or unsuccessfully argued for a particular interpretation of a local agency’s General Plan or Zoning code with regard to a specific project proposal. And, even if they asked the Attorney General to pursue legal action along those lines and the AG agreed to do so, it is an indisputable fact that the interpretation of the Belvedere General Plan and other regulations could only be decided by a court of law.

In our opinion, HCD’s threats and reckless claims of enforcement authority in this instance are just bluster and bullying.

The erosion of the meaning of the law

It would be an understatement to say that trying to figure out what the law means these days is becoming increasingly obscure. To the average person, it appears that the definition of what is or is not legal is defined either by how much money or political power one has or by whether or not it serves one’s ideological leanings. This is as true on the left as it is on the right and in either case it always includes claims of having the moral high ground.

This has been enabled by the corrosively vague, far-reaching language in state housing laws, such as Senate Bill 330, the so-called fast-track project approval process law (Gov’t Code sec. 65589.5(a)(2)(L). SB 330).

This bill, among others, directs the courts, without specifics,

“to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”

This is part of the bill’s overall intention to eliminate subjective, judgment-based housing standards--community compatibility/character, design, etc.--making those unenforceable reasons for denying housing developments. (Thus, the need for cities and counties to now pass “objective design standards.”)

Unfortunately, this has resulted in a legal no-man’s-land and a backlog of situations where state housing regulations (e.g., the “builder’s remedy”) and HCD’s increasingly aggressive over-reach and even the definition of “substantial compliance with state housing law” have yet to be tested in the courts; a place where HCD’s interpretation of local land use regulations would not be afforded deference per se.

This is becoming a quagmire without end, all of which benefits HCD and Governor Newsom's personal agenda. As we’ve said before, the tragedy in all this is the capitulation cities and counties are exhibiting in the face of HCD's threats and their fear that they will lose if HCD/The AG takes them to court to challenge their actions.

FOOTNOTE:

I have received a number of questions/comments associating the issues presented here with the ongoing Huntington Beach v HCD case. However, the Huntington Beach case is about a Constitutional question regarding whether a charter city in California is subject to the RHNA quota, but that is entirely different from what this article is describing. Here the issues are not just that HCD has intervened in a local planning decision, but the nature of that intervention.

There have been many times when HCD has sent comments in support of or about a particular local project, but those don't go so far as to tell a city how it must interpret the meaning and intentions of the wording of its own General Plan or how they must determine that meaning within the context of a claim of ambiguity.

What we have is here not an instance where the city sues HCD, so much as it is a situation where a city is pressured to capitulate to HCD's demands under threat of HCD or the AG suing them, before it's even heard in a court of law.

Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO THE MARIN POST AND CVP to enable us to continue to work on behalf of all California residents.