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SoCal city sues state over SF senator’s housing law

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Huntington Beach alleges Scott Wiener’s SB 35 housing law is unconstitutional

Photo by Steve Cukrov

Huntington Beach, a beach town of a little less than 202,000 in Orange County, has sued the state of California in an attempt to overturn SB 35, the law conceived by San Francisco-based State Sen. Scott Wiener that can severely limit a city’s capacity to hinder permitting of new housing.

The suit, City of Huntington Beach v. State of California, alleges that SB 35 violates the California constitution’s protections of city authority over zoning matters.

Huntington Beach City Attorney Michael Gates writes:

The city seeks to invalidate the unconstitutional mandates of SB 35 that strip the city’s constitutionally protected charter authority with respect to local zoning “municipal affairs.” Authority over local land use and zoning of charter cities is constitutionally vested in charter cities and therefore are not and cannot be a matter of statewide concern.

SB 35 unconstitutionally interferes with the city’s authority to enforce local zoning laws and regulations. [...] The California legislature cannot impose substantive limitations to the voters of charter cities when they adopt charters and ordinances covering areas of regulation constituting “municipal affairs.”

Gates cites the state constitution’s provision that cities “shall be subject to and controlled by general laws [...] except in municipal affairs.”

“In this case [...] local land use and zoning is a municipal affair,” notes the Huntington Beach’s suit.

Signed into law in 2017—and in effect since January 2018—SB 35 grants new housing developments special fast-track status that bars many (but not all) local legal regulations that might otherwise make it difficult to obtain building permits.

Some big-ticket Bay Area developments have used SB 35 to leverage negotiations with cities, positions that a successful suit against the law could undermine.

Under the law, only those cities that are not already building enough housing to satisfy the the state’s regular Regional Housing Needs Assessments [RHNA] are vulnerable to SB 35—but it turns out that’s virtually every California city.

In 2018, Huntington Beach City Councilperson Kim Carr claimed that the RHNA is “inflated and based on faulty data regarding our the city’s population growth” and stated “I do not support the state dictating to the city how many homes we need to build or penalizing the city for failing to do so.”

Councilperson Barbara Delgleize was less critical of state mandates, but still stated, “I prefer local control; we owe it to our citizens to create the rules if possible.”

According to the Huntington Beach 2013-2021 Housing Element, the city’s RHNA called for 2,092 new permits between 2008 and 2014.

The actual number was 1,032.

In fact, the state of California is presently suing Huntington Beach as well, alleging that the city intentionally lagged on affordable housing production.

In response to the suit against SB 35, bill author Sen. Wiener said in an emailed statement that the litigation “reflects a deeply misguided view of California’s housing mess, and what we need to do so that people can actually afford to live here.”

Sen. Wiener reemphasized the depth of the housing shortfall statewide and singled out “Huntington Beach’s dismissive approach to housing—claiming there is no problem and that the state should just mind its own business” as “exhibit A for why we have a crisis.”