I strongly disagree with the attorney who said, in an article recently posted, that lawsuits against RHNA lack merit. In particular, such lawsuits by charter cities have several compelling arguments.
First -- in order to overcome home rule regarding zoning, the Calif Supreme Court has stated that a law must be rational and narrowly tailored. The RHNA/Housing Element laws, considered together, are neither. Irrationality abounds. For example, RHNA and Housing Element are zoning laws that do not require that a developer only can build the income level or levels zoned for on a site. Thus, if a suburban city has a RHNA of 500 for lower income housing, it must zone sufficient acres at a density of at least 20 units per acre to equal 500, and then designate in its Housing Element those specific sites as zoned for lower income housing. But a developer or developers can completely disregard that designation and on each site build luxury housing and nevertheless take advantage of the density. If a developer or developers do so, and as a result the remaining sites are insufficient to satisfy the city’s RHNA for lower income housing, the “no net loss” rule requires the city to upzone additional sites.
Second -- and this argument also applies to general law cities -- there is a denial of procedural due process. HCD, which sets each Council of Government’s (COG) housing allocation, is exempt from the California Administrative Procedures Act. The RHNA number assigned to each city can only be appealed to the COG that assigned it – ABAG in our region. An individual city’s number is not subject to judicial review.
There is no rhyme or reason, and no consistency, regarding how HCD reviews, and approves or denies, each city’s housing element. Provisions in one city’s housing element that are approved, are disapproved when included in another city’s housing element.
It is unfortunate that, to date, only one city, Huntington Beach, a charter city, has challenged the state’s housing laws. Other cities should band together and do the same. Or one other city should bring a class action.