By Katherine Hart
In the recent case of City of Irvine v. Southern California Association of Governments, the City of Irvine (“City”) sued the Southern California Association of Governments (“SCAG”) for allocating almost 43 percent of Orange County’s regional housing needs to the City. SCAG is charged with developing a regional housing need assessment (“RHNA”) for cities within its jurisdiction. SCAG delegated to the Orange County Council of Governments the responsibility for providing the data to be used by SCAG in applying the methodology used to determine the allocation of housing units to jurisdictions within Orange County.
SCAG adopted a RHNA methodology and issued a draft regional housing need allocation plan in February 2007, which allotted 35,000+ residential units (or 43 percent of Orange County’s entire housing need) to the City of Irvine. At the hearing to adopt the Final Allocation Plan (“FAP”), the City objected verbally and in writing to the excessive units assigned to it under the FAP. The City sued. The trial court denied each and every claim made by the City on the grounds that judicial review is precluded by the RHNA administrative process.
Thus, the issue at hand is whether judicial review of a jurisdiction’s RHNA allocation is truly precluded by RHNA’s administrative process. The Fourth Appellate District recently held that courts have no jurisdiction to review the propriety of a municipality’s RHNA allocation.
The Court of Appeals reasoned that RHNA statutes reflect a clear intent to vest HCD and respective COGs with the authority to set the RHNA allocation for each local government. “….the nature and scope of a general plan’s housing element and the length and intricacy of the process created to determine a municipality’s RHNA allocation reflects a clear intent on the part of the Legislature to render this process immune from judicial intervention.” Further, in 2004, the legislature amended Government Code section 65584(c)(4) to delete any reference to judicial review under Code of Civil Procedure § 1094.5. This too indicates a clear intent to prohibit judicial review of RHNA allocation determinations made by COGs and approved by the State Department of Housing and Community Development (“HCD”).
The RHNA Process in a Nutshell
- HCD establishes a region’s existing and projected housing need “in consultation” with the COG. (Gov. Code, § 65584(b).)
- Each COG develops a methodology for distributing the housing needs to the local governments in its region in consultation with the municipalities and public. (Gov. Code, § 65584.04.)
- A draft RHNA allocation is developed by the COG. (Gov. Code, § 65584.04(c).)
- The local governments can appeal the draft allocation plan to the COG appeals board. (Gov. Code, §§ 65584.05(d) and 65584.08(i).) If the appeal is successful, the COG may have to reallocate needs to other municipalities within its jurisdiction. (Gov. Code, § 65584.05(e).)
- Additional public hearings get held prior to the drafting of the final allocation plan by the COG.
- The COG adopts a Final Allocation Plan, which must be reviewed and approved by HCD. (Gov. Code, §§ 65584.05(h) and 65584.08(k).)
Noteworthy, the Court of Appeals stated that “the RHNA allocation process must be completed in advance of the revision of a municipality’s general plan housing element.” [Emphasis added.] To the contrary, HCD has indicated that so long as the local agency goes back and revises/amends its housing element to incorporate a late-adopted RHNA allocation, that satisfies the statute and a City or County can adopt its housing element without the RHNA allocation process first being completed.
Perhaps this will be the next RHNA issue to be resolved by litigation.
Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.