OC cities could challenge housing decision in state’s Supreme Court

Orange County cities may challenge the state’s highest court over a ruling that mandates Southern California must plan to build 1.34 million homes.

Late last month, a state appeals court tossed out a lawsuit by the Orange County Council of Governments, which argued a state housing agency had “grossly overestimated” a required housing target for 2030, the Orange County Register reported. 

The regional planning joint powers agency will discuss Thursday whether to appeal the decision to the state Supreme Court, its attorney said.

In 2021, OC cities had sued the state Department of Housing and Community Development, arguing the state agency had overestimated the number of new homes the Southland needed by the end of the decade. Of the state-mandated 1.34 million homes, 180,000 are in OC.

The correct number across SoCal, they argued, should be rezoning for 651,000 homes, or about half or the original projection.

Six Los Angeles County cities joined the lawsuit, but a Superior Court judge dismissed the case.

In its July 27 opinion, the Fourth District Court of Appeals upheld the November 2021 Superior Court ruling.

It said state amendments to the housing needs assessment law banned cities from challenging housing allocations in court. 

A 2009 ruling in a case involving the City of Irvine upheld one of those amendments, saying that lawmakers essentially made state and regional officials the “final judge, jury and appellate tribunal” for housing allocations.

“The Legislature clearly intended to eliminate judicial remedies for challenging a municipality’s (state housing) allocation,” the appellate justices wrote. They said the Regional Housing Needs Assessment is “immune from judicial intervention.” 

Fred Galante, the attorney for the Orange County Council of Governments, disagreed.

“Our argument all along has been there’s nothing in the statute that says you can’t sue,” Galante told the Register.

UC Davis law professor Chris Elmendorf, an expert in the Regional Housing Needs Assessment process, said he wasn’t surprised by the appellate ruling, given the cities’ planning window. “There’s no way for that system to work with those timelines if RHNA determinations are subject to judicial review,” Elmendorf said.

He said it’s legal for state lawmakers to prohibit courts from reviewing housing allocations because “this doesn’t involve individual rights,” which tend to require judicial review.

This case, Elmendorf told the newspaper, is about planning obligations for local governments, “which themselves are creatures of the state.”

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— Dana Bartholomew