State AG is unconstitutionally stripping cities’ authority over zoning decisions

On July 17, Attorney General Rob Bonta issued a press release addressing his concern that cities are "attempting to skirt state housing laws." That press release is the State's top attorney using high-pressure rhetoric and tactics to coerce cities into compliance with the State's policy goals. Policy advocacy goes far beyond the Attorney General's stated goals of legal practice by "ensuring that the laws of the state are uniformly and adequately enforced" (as the Attorney General's website indicates).

Principally, Section 65858 of the Government Code that Bonta discourages cities from using in his press release provides that "Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a county, city, including a charter city, or city and county, to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time."

Contrary to Bonta's arguments, cities are entitled to rely on Section 65858 for zoning updates. The State Legislature designed Section 65858 to allow local discretionary bodies (such as Planning Commissions and City Councils) to consider the impact of proposed zoning changes in their communities; i.e., to allow those discretionary bodies to make special zoning accommodations "to protect the public safety, health, and welfare" of their communities. This is the law; yet Bonta is now openly discouraging cities from using this law.

This is nothing more than another attempt to strip cities of their discretionary authority over local zoning decisions. Bonta, as a self-appointed policy advocate, seeks to have Housing Elements of cities quickly updated all over the State providing for massive high-density Regional Housing Needs Allocation (RHNA) quotas without careful consideration, thought, or local deliberation as to how the proposed zoning changes impact communities. Although there are over 200 cities marked by Sacramento as "out of housing compliance," Bonta proudly claims in his press release that he is suing certain cities; punishing them and using them to set an example, like he has with his suit against the City of Huntington Beach. Bonta pretends this is about cities "skirting" State housing laws. Really?

The heavy-handed State housing laws unconstitutionally seek to deprive local City Councils of their discretionary authority to make local zoning decisions that are fitting, safe, and healthy for their communities. For example, the City of Huntington Beach is expected to implement a high RHNA quota of 13,368 high-density units in its current Planning Cycle. For Huntington Beach, with presently 81,000 dwellings, at a 20% inclusionary rate, the 13,368 RHNA could mean nearly a 50% increase in the City's entire housing inventory in just the next few years. Cities, like Huntington Beach, faced with these massive high-density housing quotas should consider the application of Section 65858 to the zoning proposals in their cities and take the time to consider impacts the proposed zoning changes will have on their communities. In doing so, cities would not be "skirting" State housing law, cities would be following State housing law, particularly the protections afforded by Section 65858 for "public safety, health, and welfare" of communities.

In fact, careful consideration of zoning by local zoning agencies for "public safety, health, and welfare" is the same kind of thing that the California Environmental Quality Act (CEQA) seeks to accomplish. In addition to the State's rush for high-density housing implementation that runs roughshod over the careful considerations of CEQA, notably, the State, when it passed SB 9 and AB 2011 never conducted its own CEQA analysis to determine what, if any, negative impacts might occur to environments in California when those laws are acted upon in cities. For instance, SB 9 specifically provides for the "subdivision" of single-family parcels such that multiple housing units may be built on what was formerly a parcel/lot intended for a single family home. SB 9 is designed therefore by the State Legislature to subdivide, essentially multiply, and thereby "densify" single-family neighborhoods. What are the environmental impacts of such densification? What are the impacts to public safety, health, and welfare of the residents in these neighborhoods by these "ministerial" approvals of SB 9 projects, i.e., that because of SB 9, cities cannot require their own environmental reviews of proposed SB 9 projects, or allow local discretionary bodies like Planning Commissions or City Councils to scrutinize these developments and weigh in on environmental concerns.

It seems that the same State leadership that used to invoke California environmental regulations at every turn to slow developments, has done a one-eighty. It now seeks rapid high-density development in every corner of already-developed cities throughout the State without any careful consideration for "public safety, health, and welfare" that Section 65858 is designed to protect. Moreover, Bonta is using press releases with high-pressure rhetoric to scare cities into not using the State laws readily available to them designed to protect their communities. City Councils are vested by their constituents with the discretion to make decisions on local governance; they should do what is right for their communities.