State sues Huntington Beach for ban on builder’s remedy and ADU housing

After Huntington Beach pulled up its drawbridge against dense housing development, the state sued the Orange County city, saying its ban on approving applications for “builder’s remedy” and granny flats broke California law. 

Gov. Gavin Newsom and Atty. Gen. Rob Bonta announced the legal challenge two days after the City Council voted 4-3- to shun any applications filed under the provision in a state law that allows developers to skirt zoning rules in cities without a state-approved housing plan, the Los Angeles Times reported.

In addition, the state is filing a motion for preliminary injunction, which would bar the ban from taking effect while litigation is ongoing.

“California is facing an existential housing crisis, one we should all be acting in unison to solve,” Bonta said at a news conference. “Instead, the Huntington Beach City Council has chosen to stifle affordable housing projects, infringe on the rights of property owners and knowingly violate state housing law.”

The lawsuit comes two days after Huntington Beach drew a line against builder’s remedy applications, which automatically approve projects with 20-percent affordable homes in cities and counties that lack certified plans.

At the same time, the coastal OC city voted 4-3 to extend a decision not to accept any new applications for backyard housing units known as accessory dwelling units, or granny flats, the Orange County Register reported.

“What I am against is the urbanization of a wonderful suburban community,” Mayor Tony Strickland said during a five-hour City Council session earlier this week. “If our citizens wanted an urban community, they will move to Los Angeles.”

After a closed session, City Attorney Michael Gates announced the council also decided to pursue options for challenging SB 9, a state law allowing duplexes and lot splits in single-family neighborhoods. 

A city lawsuit challenging the law could be among the options, Gates said.

In addition, Gates said the city will file a new lawsuit this week challenging a state-mandated goal that it must accommodate 13,368 new homes by the end of the decade. The city has argued that as a charter city, Huntington Beach has greater autonomy and therefore isn’t subject to state housing laws.

“We are definitely in an area where charter city authority versus state authority on control of local housing decisions is still largely unresolved,” Gates told the council. “There’s a lawsuit challenging SB 9. There are lawsuits all over, up and down the state, challenging state laws.”

Newsom made an example of Huntington Beach in 2019 when the state filed its first lawsuit against a city for not having a state-approved housing plan, known as a housing element.

After fighting the state on charter city grounds for a year, Huntington Beach relented, settling the case out of court after losing millions of dollars in state funding – a consequence of not having a housing element.

But the city’s new plan to ignore the builder’s remedy ignited a firestorm of criticism – and this week’s lawsuit.

Newsom called Huntington Beach an example of “what’s wrong with housing in the state of California.”

“They’re Exhibit A, what NIMBYism looks like and they are not representing the people they claim to represent,” Newsom said, referencing a term used to describe people that oppose new housing in their neighborhoods. “This is a waste of time and they’re wasting taxpayer money.”

Huntington Beach is among 242 California cities and counties subject to the builder’s remedy legal strategy because it has yet to adopt a state-certified housing element spelling out where future housing can be built.

City leaders across the state are concerned the builder’s remedy will bring unwanted housing to their neighborhoods, while stricter laws have made adoption of housing elements more difficult and time consuming. 

As a result, at least 26 builder’s remedy applications have been filed since June in Southern California alone. The projects seek to build more than 8,600 apartments in high-rises as tall as 18 stories.

“I think what’s coming from the state is a goal to get rid of suburbs around California,” Strickland, a former state assemblyman and state senator active in Republican Party circles, said. “The citizens of Huntington Beach that I was talking to said they wanted to keep that coastal-community-suburban feel that we have here today.”

— Dana Bartholomew