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Orange County leaders to appeal housing decision to state Supreme Court

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An Orange County planning body will ask the California Supreme Court to weigh in on the state’s mandate that Southern California cities and counties plan for construction of 1.34 million new homes by the end of the decade.

In a unanimous decision, the Orange County Council of Governments voted Thursday, Aug. 24 to file a Supreme Court appeal of lower court opinions tossing out a lawsuit arguing that the state-imposed housing goal is excessive.

The 2021 lawsuit — joined by the Los Angeles County cities of Torrance, Whittier, Redondo Beach, Lakewood, Cerritos and Downey — was dismissed in November 2021 by an L.A. County superior court judge. Last month, the Second District Court of Appeals upheld the superior court ruling, finding that the state Legislature adopted amendments in 2004 that made the “Regional Housing Needs Assessment” process “immune from judicial intervention.”

“The Legislature clearly intended to eliminate judicial remedies for challenging a municipality’s (state housing) allocation,” the appeals court ruled.

The ruling irked Orange County leaders because it ignores the merits of their lawsuit, which alleges that state housing and community development officials failed to follow the law in determining the region’s housing needs for this decade.

“I think (the appeal) is needed to send a message that we’re still unhappy. We feel that HCD is wrong,” said Buena Park Mayor Art Brown, the 2023-24 chair of the Southern California Association of Governments (SCAG) and an Orange County Council of Governments member. “We feel it’s just too many housing units.”

Fred Galante, attorney for the Orange County inter-governmental body, disputed the appeals court finding that the 2004 legislative amendments ruled out the option to challenge a state housing mandate in court.

“There’s nothing in the law that prohibits challenges when HCD doesn’t follow the law,” Galante said.

The state Attorney General’s Office, which represented the housing department in the case, didn’t respond to requests for comment.

The 1.34 million-unit mandate applies to all city and county jurisdictions in the Southern California Association of Governments (SCAG) region, which includes Los Angeles, Orange, Riverside, San Bernardino, Ventura and Imperial counties. Los Angeles County has the biggest housing allotment: 812,060 new homes. The mandate also includes 183,861 homes in Orange County and 305,461 units in the Inland Empire.

Of the 1.34 million new homes, more than half — 782,560 units — must be affordable to low- and moderate-income households.

The state’s 53-year-old Regional Housing Needs Assessment law requires that all municipalities in the state plan and zone for needed housing at all income levels within their jurisdiction. Subsequent legislation created consequences for jurisdictions when the mandated housing doesn’t get built.

The RHNA law created a process requiring housing officials to determine residential needs for each region in the state. Regional  planning bodies like SCAG then allocate a portion of its mandated housing goal to each city and county in its area.

“We don’t believe HCD followed the statute in reaching that allocation,” said Mission Viejo Councilmember Wendy Bucknum, who chairs the Orange County inter-governmental council.

“We understand we have to meet projections of housing needs,” Bucknum said after Thursday’s meeting in Irvine. “The problem is not allowing us to have local control.”

The council of governments has until Sept. 5 to file the appeal, Galante said.

The Supreme Court has discretion in deciding whether to review the appeals court decision, meaning that the 1.34 million homebuilding mandate becomes final if the high court declines to review the matter.

“The California Supreme Court doesn’t accept many cases, so we’re hoping that this is one of them because it’s a very important issue that needs to be corrected,” Galante said.

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