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San Bernardino settles with state over missing Housing Element

Agreement comes as development battles rage in cities across California

San Bernardino Settles With State on Housing Plan
State Attorney General Rob Bonta and San Bernardino mayor Helen Tran (Getty, Helen Tran)

UPDATED Aug. 31 at 10:45 a.m.:

The City of San Bernardino has settled a legal dispute with state authorities over the city’s failure to produce a state-compliant Housing Element, the comprehensive document that outlines every California jurisdiction’s plan to build more residences, the state attorney general’s office announced on Wednesday. 

The San Bernardino agreement is the first state settlement related to California’s most recent Housing Element cycle, which outlines plans for the 2021-2029 period, and comes at a time when numerous NIMBY-minded cities around California — from La Cañada Flintridge to Atherton — are engaged in often hostile development-related battles with both developers and state authorities, who in recent years have pushed for new construction to help alleviate California’s housing crisis. 

Unlike those ideologically pitched battles, however, San Bernardino’s dispute with the state  came down to pragmatism more than ideology. The city only recently exited bankruptcy, a city representative pointed out, and has lacked the resources to quickly update its housing plan.  

“We have been working with bare bones staff on planning,” said Jeff Kraus, a San Bernardino public information officer. “We basically did not even have a housing office until last year.” 

The settlement came nearly two years after San Bernardino — a city of some 220,000 people about 60 miles east of Los Angeles — missed an initial deadline to receive a state sign-off on its updated plan. Most Southern California cities faced the same Oct. 15, 2021 deadline, and dozens of others also blew the deadline, resulting in violations that subjected the out-of-compliance cities to penalties that include builder’s remedy, a legal provision that allows developers to bypass local zoning entirely for projects with an affordable housing component. 

But for months San Bernardino failed to adopt an updated plan to send to the state for approval. The city was always focused on passing an element that’s in line with state goals, Kraus emphasized, but, in addition to a lack of resources, was slowed down by its strategy of attempting to update its entire general plan as opposed to focusing solely on the Housing Element. 

“It’s not something we’re shirking,” he said of the housing document. “It’s something we have been moving forward on for three years.” 

Still, the city’s tardiness prompted numerous warnings from the state, and in February, after San Bernardino was months behind its own estimated timeline, a coalition of nonprofit groups, on behalf of residents, sued the city, leading the state to intervene in the case.  

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For its latest update the state required San Bernardino plan for an additional 8,123 units, including 2,512 very low and low income units. Under the settlement, which must still be approved by a court, San Bernardino agreed to reach state compliance on a Housing Element with those requirements and modernize its zoning code by next February or face escalating penalties, including the eventual loss of all market-rate development permitting authority. 

Early this month the city did submit one draft of its update to the state, with some back and forth likely before the new February deadline. 

The settlement also allowed the state’s Department of Housing and Community Development, the agency in charge of Housing Element compliance, to assert a victory as state leaders continue to push for more enforcement of pro-development laws. 

“Our message is clear — every city and county will be held accountable to state housing laws,” Gustavo Velasquez, director of the said in a release. “We will continue to work in partnership with the City of San Bernardino to ensure they meet all the terms agreed to in this settlement because ultimately we want to spend time building homes — not in court.” 
Additional legal battles involving the state related to Housing Element law remain ongoing, including one particularly nasty fight in Huntington Beach, where local officials have cast their opposition to state housing authority as a kind of existential battle for local control. 

Additional Information: Previous article did not include comments and context from the City of San Bernardino.

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Builder’s RemedyHousing ElementRob BontaSan Bernardino