What happens if a city does not adopt a housing element or if the housing element does not comply with state law?

The penalties for non-compliance have increased in scope and severity over the past few legislative cycles, and they currently include:

  1. Limited access to state funding, including transportation funding for local roadway maintenance and capital improvement projects.
  2. Court imposed fines of up to $600,000 per month. The statute also allows the state to collect these fines by withholding state funding due to the city.
  3. Lawsuits: When community’s housing element is found to be out of compliance, its General Plan is at risk of being deemed inadequate and therefore invalid, opening the possibility for lawsuits.

Consequences of lawsuits

  • Court mandated compliance
  • Court suspension of local control on building matters, freezing the community’s ability to issue building permits, zoning changes, etc.
  • Court approval of housing developments on behalf of the community Attorney fees associated with the lawsuit

Over the past 20 years, cities and counties throughout the Bay Area (including Corte Madera, Pittsburg, Pleasanton, Alameda, Benicia, Fremont, Rohnert Park, Menlo Park, Napa County, and Santa Rosa) have faced legal challenges to the adequacy of their housing elements. In virtually every case, the city settled by amending their housing element and/or zoning ordinance to accommodate more housing and paid the plaintiffs’ attorneys fees. Each of these cases were filed prior to the most recent amendments to the state housing law which make it exceedingly more difficult for cities to win such cases.

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