AG Bonta Issues Legal Guidance for Local Governments Attempting to Skirt State Housing Laws

Special to the Vanguard

OAKLAND, CA – California Attorney General Rob Bonta today issued legal guidance to local governments, reminding them of the strict requirements under state law for enacting so-called “urgency zoning ordinances.” The Housing Justice Team within the California Department of Justice has observed that some local jurisdictions have responded to state housing laws passed in recent years by enacting urgency zoning ordinances in an apparent attempt to limit or circumvent state housing mandates. Under California Government Code Section 65858, urgency zoning ordinances require written “legislative findings that there is a current and immediate threat to the public health, safety, or welfare” demanding immediate action. In today’s guidance, Attorney General Bonta underscores that local governments should review any urgency zoning ordinances they have enacted, or are considering enacting, for compliance with those limited emergency circumstances.

“Under California law, urgency zoning ordinances can only be enacted if a high bar is met. Unfortunately, we are seeing urgency zoning ordinances that fall short of meeting that high bar,” said Attorney General Bonta. “As I’ve said time and again, every community must do its part to build housing — unless there’s a real emergency, they cannot use urgency zoning ordinances to stop housing developments. I encourage local governments take a good look at their urgency zoning ordinances for compliance with the guidance we are providing today. My office is committed to taking legal action against those who frustrate California’s goals of increasing housing supply and affordability.”

Among the state housing laws providing for streamlined approval of certain housing developments are Senate Bill 9 (SB 9) and Assembly Bill 2011 (AB 2011). Under SB 9, local agencies must provide a “ministerial” approval process for any proposed duplex within a single-family residential zone, or for any proposed lot split of a single-family residential parcel. Under AB 2011, which took effect July 1, 2023, “ministerial” review is similarly required for affordable housing projects located in commercial zones. Ministerial review is where a public official, such as local planning staff, ensures that the proposed development meets all the applicable objective standards for the proposed action but uses no special discretion or judgment in reaching a decision.

In today’s guidance, Attorney General Bonta includes the following information:

  • Written legislative findings are required to support claims that SB 9 or AB 2011’s requirements could pose a threat to public health, safety, or welfare. Such findings must be made with specificity; otherwise, an urgency zoning ordinance is likely invalid. Laws requiring ministerial approval of housing development, such as SB 9 or AB 2011, do not by themselves constitute a current and immediate threat to public health, safety, or welfare. Generalized concerns about visual or aesthetic standards are insufficient to support an urgency ordinance.
  • In addition, urgency zoning ordinances must demonstrate immediate need, meaning that local agencies face immediate threats.
  • To keep an urgency zoning ordinance prohibiting multifamily housing in place beyond 45 days, local jurisdictions must identify a significant, quantifiable, direct, and unavoidable impact based on objective policies in existence at the time the ordinance is adopted. Local jurisdictions must also demonstrate that there is no feasible alternative that would mitigate or avoid the adverse impact “as well or better, with a less burdensome or restrictive effect,” than the urgency ordinance.

Attorney General Bonta is committed to enforcing California’s housing laws and ensuring that communities throughout the state work in good faith to build their fair share of housing. On November 3, 2021, he announced the creation of a Housing Justice Team within the California Department of Justice. On April 1, 2022, he issued a consumer alert reminding California’s tenants of their rights and protections under state law. On July 13, 2022, he issued legal guidance about steps law enforcement officers should take to prevent and respond to unlawful lockouts and self-help evictions. On March 9, 2023, he filed a lawsuit against the City of Huntington Beach for violating state housing laws. On May 1, 2023, he filed a lawsuit against the City of Elk Grove, challenging the city’s denial of a proposed supportive housing project in the city’s Old Town Special Planning Area. On June 16, 2023, he announced a settlement against Green Valley Corporation, a San Jose-based housing developer and property manager, to resolve allegations that the company violated the California Tenant Protection Act by issuing unlawful rent increases to nearly 20 of its employee tenants and serving unlawful eviction notices to six of those employee tenants. On June 27, 2023, he announced filing a comment letter that identifies serious legal issues concerning the proposed Airport Gateway Specific Plan in the Inland Empire Cities of Highland and San Bernardino.

A copy of the guidance can be found here.

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  1. Walter Shwe

    I love it when conservatives, in particular one individual, are outed for opposing justice. I don’t know why I also love utilizing the word ‘outed’ when it appropriately applies to conservatives.

  2. Ron Oertel

    AG Bonta Issues Legal Guidance for Local Governments Attempting to Skirt State Housing Laws

    Based upon the title of this article, this sounds like a “how to” guide.

    Though I suspect that some cities (and residents therein) are paying attention to what “works” in other cities, to accomplish that. And I’m sure that some will “find” ways, if they haven’t already. (At least, to tie it up in court.)

    One interesting example that I recall is to count “assisted living facilities” (for disabled folks) in regard to Affordable housing targets. Not sure what became of that.

    In any case, the economy, housing downturn, and lack of funds for Affordable housing will work their own “magic” on these plans – regardless of any threat from Bonta. In fact, that’s already occurring.

    (It would be interesting to see some periodic “updates” regarding how much of these plans in individual cities across California are actually getting built, despite all of the saber-rattling.)

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