Warning delivered to Huntington Beach City Council as it again considers suing state over housing mandates

Battle lines are being drawn on the Huntington Beach City Council as it continues to explore how to handle the state’s daunting Regional Housing Needs Allocation numbers.

The new conservative majority that was sworn in last month campaigned on “unleashing” City Atty. Michael Gates to sue over the numbers, which require Huntington Beach to zone for 13,368 units during the current RHNA cycle that started in October 2021 and continues through October 2029.

But a letter sent to City Manager Al Zelinka on Monday by Melinda Coy, the state Department of Housing and Community Development proactive housing accountability chief, suggested that might be a bad idea.

Coy said that HCD reviewed the written report and watched video of the Dec. 20, 2022 City Council meeting, when the council voted 4-3 to oppose the RHNA mandate and take “whatever legal action is required” to challenge it. The item was introduced by Councilman Casey McKeon.

The proposal also sought to eliminate “builder’s remedy” projects in the city, which limit a city’s ability to deny development projects if its housing element isn’t in compliance with state housing law.

“While the reviewed materials and meeting deliberations provided little detail as to the intended contents of the proposed ordinance, it did appear that the city intended to limit the application of the [Housing Accountability Act],” Coy wrote in the email. “HCD will continue to monitor the city’s actions regarding the proposed ordinance, and if the city adopts an ordinance that violates state housing law, HCD will respond in order to remedy those violations.”

Regatta is a new condo complex in Huntington Beach. The city is required to zone for 13,368 new units in the current Regional Housing Needs Allocation cycle.

(Kevin Chang / Staff Photographer)

The city’s housing element is currently out of compliance. A draft ordinance met state requirements, but has yet to be voted on by the newly constituted City Council. A study session on the housing element is scheduled for Tuesday’s council meeting.

Coy noted that courts have recently held that the process of determining cities’ RHNA is not subject to judicial review, citing a 2009 Irvine case which was confirmed by a decision involving the city of Coronado last year.

“Thus, the proposed legal challenge to the city’s RHNA will likely fail,” Coy wrote. “If HCD finds that a city’s actions do not comply with state law, HCD may notify the California Office of the Attorney General that the local government is in violation of state law.”

The three City Council members who are against suing the state are Dan Kalmick, Natalie Moser and Rhonda Bolton. They jointly sent a press release to media Wednesday noting that Huntington Beach, among other Southern California cities, has already tried to appeal its RHNA numbers.

“Our city attorney and newly elected City Council members campaigned on the suggestion that certain City Council members lacked the stomach to challenge state mandates,” Bolton said in a statement. “This is not a matter of weak stomachs; it’s a matter of brains and pocketbooks. We don’t believe endless, futile litigation — which is not ‘free’ even if handled by the city attorney’s office — is the most prudent use of our taxpayers’ dollars.”

Gov. Gavin Newsom has his eye on Huntington Beach’s housing issue, and not for the first time. In 2019 the state sued Surf City, alleging the city wasn’t allowing for enough building to account for its growing population. A settlement was reached in January 2020 after the city agreed to zone for more low-income housing.

In January 2021, Huntington Beach lost a suit against the state of California to be exempted from recently passed housing bills, including Senate Bill 35 and SB 1333.

The previous council voted against suing the state in April 2021, noting the cost and failed previous appeal attempts. Kalmick made the motion to postpone Councilman Erik Peterson’s proposal, and it passed 5-2.

“You’re never going to go from 13,386 [mandated units] to zero,” then-Councilman Mike Posey said at the time. “You’re not even going to go from 13,000 to 10,000 ... we’re going on a fool’s errand [by suing].”

Newly seated Huntington Beach Mayor Tony Strickland responded to the letter from the state Thursday with his own statement. He noted that Gates has yet to brief the council on the nature of a possible lawsuit, and added that no Huntington Beach challenges to state law have directly cost the taxpayers any money.

The City Council is expected to discuss a challenge to the state’s RHNA numbers with Gates in closed session on Tuesday.

“The city of Huntington Beach is right to challenge these state housing mandates,” Strickland said in the statement. “We don’t need to hear a lecture from Gov. Newsom. Gavin Newsom left San Francisco in shambles as mayor and is doing the same thing to our state.”

Strickland noted that the state has lost hundreds of thousands of people in the last couple of years, including 117,552 people in 2021 according to the state’s Department of Finance, and lost a seat in Congress for the first time following the 2020 census.

He added that a 2022 review by the state’s independent auditor was critical of HCD in its RHNA determination.

“As such, HCD and the agents that seek to enforce state housing mandates on cities like Huntington Beach are ripe for challenge,” Strickland said in the statement. “Not challenging this, and not protecting the city of Huntington Beach and defending it from this rogue tyranny by an administrative agency, would be irresponsible.”

Strickland also slammed the council minority reaching out to the press in the statement. Per the city charter, only the mayor has the authority to make public statements on behalf of the city.

But Kalmick said in a phone interview Thursday that he and the other minority members were not making an official city statement but simply reflecting their personal opinions on the matter.

A Dec. 8 special meeting proposed by Kalmick, when the new City Council could have discussed and possibly voted on the housing element, was canceled by Strickland after he became mayor two days earlier.

“I disagree that suing is the right answer,” Kalmick said. “It’s plain and simple, that’s the statement that we made. The press release was about the HCD letter that basically said, ‘You have a major issue if you go forward with this.’ So we wanted to be on record saying that we don’t agree that suing is the right option.

“Change my mind, great, but I don’t see how any of the statements we made would undermine [Gates’] case. The council still hasn’t even voted to go sue.”

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