Housing Element Lawsuits Filed Against Cities and Counties Across Bay Area

In response to the widespread failure by Bay Area cities and counties to meet the January 31 deadline for adopting their sixth cycle housing element updates, three California pro-housing legal nonprofits are announcing an effort to sue cities across the region.

As of Friday, February 3, 2023, Californians for Homeownership, California Housing Defense Fund, and YIMBY Law had filed 12 lawsuits in Contra Costa, Santa Clara, Marin, and San Mateo County Superior Courts with the intention to file more in the coming weeks. The cities and counties sued include: Belvedere, Burlingame, Cupertino, Daly City, Fairfax, Martinez, Novato, Palo Alto, Pinole, Pleasant Hill, Richmond, and Santa Clara County. Each municipality has been sued by one or two of the non-profits.

“There’s no excuse for these cities to be in violation of state law,” says Sonja Trauss, YIMBY Law Executive Director. “Cities have had years to plan for this. They’ve also received resources and feedback from us, our volunteer watchdogs, and HCD. These cities are trying to push the responsibility onto other communities and avoid having to welcome new neighbors. It’s time for them to be held accountable.“

With the Bay Area’s 109 cities and counties at widely varied stages in the process of Housing Element adoption and compliance, these twelve lawsuits mark the first round of what will likely be many rounds of judicial review for noncompliance with state housing law in the Bay Area. The initial lawsuits focus on cities with a long history of exclusionary housing practices, cities that adopted housing elements unlawfully, and localities that have made little progress in developing their draft housing elements. The organizations will continue to file suits in the coming weeks, prioritizing cities with the most egregious violations in each organization’s judgment.

“It is unacceptable that most Bay Area cities have failed to come up with plans to address the ongoing housing crises,” adds CalHDF Executive Director Dylan Casey. “We cannot begin to fix our housing problems when local governments respond to clear state directives by dragging their feet and looking for loopholes to avoid their responsibilities to provide needed housing growth. We hope these lawsuits will help get cities back on track.”

Among other remedies, the lawsuits seek to establish that these cities and counties are subject to the “builder’s remedy,” a provision in the state’s Housing Accountability Act that exempts mixed- and moderate-income projects from local development standards.  These standards have historically made it difficult to build housing developments—especially those that include housing for lower-income households.

“These new lawsuits build on our work to enforce housing element law in Southern California, where we filed lawsuits against nine cities starting in April 2022,” said Matthew Gelfand, Counsel at Californians for Homeownership. “The Bay Area’s cities and counties had over fifteen months longer to develop housing elements, and many started their process over a year ago.  But they let the process get bogged down as the deadline approached, often as the result of opposition by anti-housing activists. These lawsuits will help ensure that these cities and counties face appropriate consequences.”

With overlapping missions to enforce state law, the organizations announcing their housing element lawsuits include three California housing advocacy nonprofits—Californians for Homeownership, the California Housing Defense Fund (CalHDF), and YIMBY Law—with a common interest in ending the Bay Area housing shortage.

Copies of the filed petitions for writ of mandate are available.

About:

Formerly the California Renters Legal Advocacy and Education Fund, the California Housing Defense Fund is a 510(c)(3) nonprofit with a core mission to make lasting impacts to improve the affordability and accessibility of housing to current and future Californians, especially low- and moderate-income people and communities of color.

Californians for Homeownership is a 501(c)(3) non-profit organization that works to address California’s housing crisis through impact litigation to support access to housing for families at all income levels.  The organization was founded by and receives financial and operational support from the California Association of REALTORS®.

YIMBY Law’s mission is to end the housing shortage and achieve affordable, sustainable, and equitable housing for all. YIMBY Law is the legal arm of YIMBY Action, and is housed in YIMBY Action’s 501c3 affiliate, Yes In My Back Yard. YIMBY Law leads grassroots oversight and takes legal action so that housing laws are followed, more homes are built, and housing becomes affordable and equitable. YIMBY Law also works with state and local agencies, advocates, and developers to improve housing laws and their implementation.