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What Happens If a Jurisdiction Does Not Adopt a Housing Element or the Element Does Not Comply with State Law?

If the California Department of Housing and Community Development determines that a Housing Element fails to substantially comply with the State’s Housing Element Law, there are potentially serious consequences that extend beyond the realm of residential land use planning. When a jurisdiction’s Housing Element is found to be out of compliance, its General Plan is at risk of being deemed inadequate, and therefore invalid. If a jurisdiction is sued over an inadequate General Plan, the court may impose requirements for land use decisions until the jurisdiction brings its General Plan—including its Housing Element—into compliance with State law.

A Housing Element is considered out of compliance with State law if one of the following applies:

  1. It has not been revised and updated by the statutory deadline, or
  2. Its contents do not substantially comply with the statutory requirements. If a Housing Element is certified, there is a presumption that it is adequate, and a plaintiff must present an argument showing that it is in fact inadequate.

Over the years, California has steadily increased the penalties for not having a legally compliant Housing Element, and this trend is expected to continue.

Repercussions include:

  1. Limited access to State Funding. Both the California Infrastructure and Economic Development Bank (CIEDB) and the Bay Area’s Metropolitan Transportation Commission (MTC) award funds based on competitions that take into consideration the approval status
    of a community’s Housing Element. See the list below for specific programs.
  2. Lawsuits. Developers and advocates may sue jurisdictions if their Housing Element is not compliant with State Law. Recent Bay Area cities that were successfully sued include Corte Madera, Pittsburg, Pleasanton, Alameda, Benicia, Fremont, Rohnert Park, Berkeley, Napa County, and Santa Rosa. There are several potential consequences of being sued, including:
    1. Mandatory compliance – The court may order the community to bring the Element into compliance within 120 days.
    2. Suspension of local control on building matters – The court may suspend the locality’s authority to issue building permits or grant zoning changes, variances or subdivision map approvals.
    3. Court approval of housing developments – The court may step in and approve housing projects, including large projects that may not be wanted by the local community.
    4. Fees – If a jurisdiction faces a court action stemming from its lack of compliance and either loses or settles the case, it often must pay substantial attorney fees to the plaintiff’s attorneys in addition to the fees paid to its own attorneys. These fees can easily exceed $100,000.
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