Attorney General Bonta and Newsom Administration file amicus briefs siding with Newport Beach in lawsuits attacking City’s general plan

California Attorney General Rob Bonta and California Department of Housing and Community Development (HCD) Director Gustavo Velasquez announced that the Orange County Superior Court has granted their application to file amicus briefs in support of the City of Newport Beach’s efforts to comply with state housing law. Last year, two local organizations sued the City for taking steps to update and implement its housing element, or housing plan, as required under the state’s Housing Element Law. Specifically, the City amended its land use element to allow residential development in more of the City, adopted new overlay zoning districts to create more residential development capacity in six focus areas, adopted a set of objective development standards, and amended the City’s Local Coastal Program to be consistent with the City’s housing element. The local organizations suing the City contend that these changes must be approved by voters before they are effective because of a provision in the City’s charter. In their amicus briefs, Attorney General Bonta and the Newsom Administration agree with the City’s position that the City’s charter provision cannot be used to obstruct the state’s Housing Element Law.

“Too often, my office finds itself needing to hold local governments accountable for failing to follow our state’s housing laws. Right now, Newport Beach is attempting to do the right – and legal – thing, and I want to commend them for it,” said Attorney General Bonta. “In partnership with the Newsom Administration, we sought, and have received, court permission to file amicus briefs supporting the City’s efforts to build its fair share of housing. California is continuing to deal with a housing crisis of epic proportions. Now is the time for leaders at every level of government to say yes to cooperation and yes to more homes.”

“Newport Beach has done the work needed to adopt a compliant housing element, which is foundational to ensuring we meet state housing need for all income levels,” said HCD Director Gustavo Velasquez. “HCD is proud to stand with the City against efforts to stall implementation of its housing plan, and to help ensure the City remains compliant with Housing Element Law.”

The state’s Housing Element Law creates a comprehensive framework for statewide and regional coordination to ensure that each local government accommodates its fair share of new housing. Local governments must adopt general plans, and those general plans must include housing elements that substantially comply with the state’s Housing Element Law. Those housing elements must accommodate the housing “needs of all economic segments of the community.” At issue is Section 423, a provision in the City’s charter that subjects any major amendment to its general plan for voter approval before it can take effect. Critically, Section 423 also states that it “shall not apply if state or federal law precludes a vote of the voters on the amendment.”

In their amicus briefs, Attorney General Bonta and the Newsom Administration underscore that:

• In California, state law may preempt local law by implication if the local law contradicts or is inimical to the state law. Here, the City was legally required to complete rezoning to implement its housing element by February 12, 2025. Conditioning implementation of its housing element on the outcome of a Section 423 vote would render compliance with the Housing Element Law infeasible.
• Vacating the City’s general plan amendment and zoning update with no legally sufficient alternative in place would violate the City’s housing element, which would in turn violate the state’s Housing Element Law. The City could face substantial legal consequences, including losing its permitting, subdivision, and rezoning authority.
• If the City vacates the changes, it will no longer substantially comply with the state’s Housing Element Law, and the Builder’s Remedy will take effect. The Builder’s Remedy prevents local governments without compliant housing elements from using their local land use laws to deny certain types of new affordable housing developments.
• The Builder’s Remedy is constitutional. One of the lawsuits argues that the Builder’s Remedy would not apply if the City was ordered to vacate the changes because the Builder’s Remedy violates the City’s home rule authority under the California Constitution. But the Builder’s Remedy is narrowly tailored to address the housing crisis, which is an issue of statewide concern.

A copy of the amicus briefs can be found here and here. A merits hearing is scheduled for June 17.