By David M. Greenwald
Elk Grove, CA – One of the big questions facing the housing crisis—would the state step in and attempt to enforce any number of new and tougher housing laws or would it step aside and continue to allow local governments to run the show?
We have seen the state take an aggressive approach in recent weeks with Huntington Beach as they attempt to exempt themselves from state laws, but perhaps a more important test case will be Elk Grove.
According to a note from the Sacramento Housing Alliance (SHA), the city “improperly denied approval for the Oak Rose Apartments that would have created 66 units of critically needed permanent supportive housing.”
According to SHA President Cathy Creswell, “This development would have provided homes with important services to help unhoused individuals get off the street and into a stable and supportive environment.”
SHA believes that the city “violated several State housing laws and delayed the development of much needed affordable homes” and so, last fall, they notified HCD’s Housing Accountability and Enforcement Unit about the inappropriate denial of Oak Rose Apartments.
HCD sent a Notice of Violation on October 12, 2022. The city responded, denying any wrongdoing.
Attorney General Rob Bonta has now stepped in with a letter dated March 16, 2023, stating, “We agree with HCD’s conclusion that the City’s denial of the Project violated state law. We urge the City to reconsider and take prompt action to conform with state law.”
The AG noted, “The proposed project would have added 66 units of supportive housing for lower-income households at risk of homelessness, in a jurisdiction in dire need of low-income housing opportunities. The Council denied the Project on the basis that it did not meet the city’s objective zoning standards and was therefore ineligible for SB 35 ministerial review.
“Confronting and addressing our state’s housing crisis requires all of us – including local governments – working together to increase affordable housing opportunities for those who need it most,” said Attorney General Rob Bonta.
“Too many Californians across this state worry about keeping a roof over their heads, or lack housing altogether. State housing laws are in place to provide all Californians, regardless of income level, the opportunity to access affordable housing and have a place to call home. We’re committed to enforcing the law, and we will not stand idly by in the face of housing discrimination. I urge Elk Grove to reconsider its unlawful denial of the Oak Rose Apartment project, or face the legal consequences.”
The AG argues that contrary to the City’s claims, this use restriction does not qualify as an “’objective standard’ under SB 35 or the HAA [Housing Accountability Act], because its application depends on the exercise of discretion. The city itself acknowledged that its OTSPA [Old Town Special Planning Area] standards—including the ground floor use restriction—involve discretion, noting that the city has a mechanism to deviate from development standards under the OTSPA for projects that meet the goals of the OTSPA, including whether a project is compatible with ‘community character.’”
Further, “Because the HAA and SB 35 prohibit the application of a standard that involves any discretionary application, the city cannot rely on this use restriction as a basis to deny the Project.”
Attorney General Bonta also argues that “Elk Grove’s unequal application of the cited land use restrictions, and subsequent denial of the Oak Rose Project constituted a discriminatory land use practice, which violates the Affirmatively Furthering Fair Housing Statute and Government Code Section 65008, which prohibit the city from making land use decisions that disproportionately harm lower-income households. “
In their note, SHA said it “supports the State’s efforts to enforce affordable housing laws to ensure the affordable housing so desperately needed in our communities can be built. “
Interim Executive Director Rachel Iskow added, “We will continue to advocate for the adoption AND implementation of effective housing elements and housing strategies that will truly serve the needs of our region and our most vulnerable populations.”
These actions are absolutely critical if California is going to be able to address its housing crisis. The letter comes just a week after the AG and Governor along with HCD announced a lawsuit against Huntington Beach.
The state claimed that, while the city is required to plan for 13,368 new housing units over the next eight years, in addition to following state law, “they are refusing to do both of these things.”
“Huntington Beach elected officials are the poster child for NIMBY-ism, and my Administration will take every measure necessary to hold communities accountable for their failure to build their fair share of housing,” said Governor Newsom. “The housing crisis facing families across the state demands that all cities and counties do their part, and those that flagrantly violate state housing laws will be held to account.”
But it also requires the state to enforce these laws and the courts to uphold the new laws.
While this is not the first time the state has intervened, what I find noteworthy in this case is that they are pressing a city on the denial of a specific project, and the denial of a relatively modest-sized project of *just* 66 affordable units.
Moreover, by going after large midsize cities like Huntington Beach and Elk Grove (both under 200,000 in population), the state is showing that they are going to take more communities to task for failing to adhere to state law.
This week Bonta told ABC that, while he is not seeking litigation, “he’s prepared to sue Elk Grove, if necessary, just like Huntington Beach was sued.”
Ultimately of course, the state is going to have to show that not only will they press local communities to fulfill their obligations, but that the state law has teeth—enforcement mechanisms and consequences.
That remains to be seen. But right now, the state has shown the willingness to attempt to enforce state law and that’s an important starting point.