California Attorney General Rob Bonta and the state Department of Housing and Community Development are requestinig to intervene in a builder’s remedy lawsuit against the wealthy Los Angeles County city of La Cañada Flintridge.
California’s “builder’s remedy” is getting big backers in court: Gov. Gavin Newsom and Attorney General Rob Bonta.
On Tuesday, Bonta and Newsom’s state Department of Housing and Community Development filed a request to intervene in a builder’s remedy lawsuit against the wealthy Los Angeles County city of La Cañada Flintridge. The request, subject to court approval, throws significant legal weight behind a largely untested provision of California law that says developers can bypass local zoning and design restrictions for projects with affordable units in jurisdictions without state-approved housing plans.
It’s a move likely to reverberate across California: More than a third of jurisdictions still don’t have state-approved housing blueprints outlining how they plan to accommodate their share of the 2½ million homes the state needs by 2031 — and the state’s action could be a green light for developers to pounce and submit projects under the builder’s remedy that likely would never get approved otherwise.
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It should also serve as a warning to San Francisco, where the Board of Supervisors tested the state’s patience by inserting last-minute amendments into Mayor London Breed’s legislation to streamline the city’s notoriously lengthy and complex permitting process.
The state housing department signed off on the policy Tuesday, allowing San Francisco — at least for now — to avoid having its housing plan decertified, which would have opened it up to builder’s remedy projects like the proposed 50-story skyscraper in the Sunset.
Just like San Francisco, La Cañada Flintridge tried to play games with the state on housing.
One of its more spurious tactics: claiming that a California law designed to desegregate historically exclusionary communities, known as “affirmatively furthering fair housing,” is unconstitutional due to the U.S. Supreme Court striking down affirmative action in college admissions.
La Cañada Flintridge’s lawyers made that claim in response to a lawsuit from development company Cedar Street Partners, which is challenging the city’s denial of its builder’s remedy application for an 80-unit mixed-income project with hotel and office space. It would be the city’s first multifamily housing development in more than a decade.
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Cedar Street Partners filed the application long before La Cañada Flintridge secured state approval for its plan to accommodate 612 homes over the next eight years. But La Cañada Flintridge’s lawyers argue that the city approved its own plan before state approval and thus wasn’t subject to the builder’s remedy.
This “self-certification” argument is absurd — and the state is saying so.
La Cañada Flintridge, Bonta argues in the filing, “is without the legal authority to declare that its own housing element ‘substantially complies’ with state law.”
A lawyer for La Cañada Flintridge has not responded to a request for comment.
The state is seeking to intervene in a separate lawsuit against La Cañada Flintridge brought by the California Housing Defense Fund, but the issues are almost identical to those raised in the Cedar Street Partners case.
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In a pair of Nov. 22 rulings in Los Angeles County Superior Court, La Cañada Flintridge’s requests to throw out both lawsuits were denied, and the city’s argument about the unconstitutionality of affirmatively furthering fair housing was described as “unpersuasive.”
Those rulings sent a clear message to other jurisdictions: Refusing to accept builder’s remedy applications “invites a judicial determination that city was in bad faith, triggering court-ordered approval of project & fines,” UC Davis law professor and California housing law expert Chris Elmendorf noted on X (formerly Twitter).
Bonta and Newsom’s move is likely a preview of more aggressive action to come. Starting Jan. 1, the Attorney General’s Office will have the unconditional right to enter any lawsuit filed over a potential housing law violation — the result of Newsom signing into law a bill authored by two San Francisco Democrats, Assembly Member Matt Haney and state Sen. Scott Wiener.
In February, Bonta put Huntington Beach on notice after the Orange County city attempted to ban the processing and approval of any builder’s remedy application. In March, Newsom and Bonta sued Huntington Beach for violating other state housing laws; hours later, the city sued the state back with an unhinged lawsuit, which was recently dismissed by a federal judge.
Bonta’s latest filing underscores the extent to which he’s zeroing in on tougher enforcement of housing laws as he seriously considers a run for governor.
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“Far too many Californians struggle to access affordable housing, and cities have a duty to facilitate, not block, affordable housing to alleviate our housing crisis,” Bonta said in a statement.
His willingness to intervene is not going unnoticed.
“The attorney general is really taking these things really seriously,” Alexandra Hack, a principal at Cedar Street Partners, told me. “I really do hope that this is a signal … to any other jurisdiction that refuses to do their part to provide their fair share of housing.”
One would hope that the San Francisco Board of Supervisors is listening. The city has long been reluctant to remove unnecessary barriers to housing production: Before the state significantly ramped up pressure, supervisors had been slow-walking Breed’s streamlining legislation for months.
If San Francisco continues to view the prospect of new housing with unfettered suspicion — making it increasingly difficult for anyone but the very wealthy to build a life here — it will be allying itself with the same city that argues housing laws intended to integrate historically exclusionary neighborhoods are unconstitutional.
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Reach Emily Hoeven: emily.hoeven@sfchronicle.com; Twitter: @emily_hoeven
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