The project and the lawsuit

The City of Elk Grove, located in Sacramento County, has denied the development of a 66-unit housing project called Oak Rose Apartments, aimed at providing permanent housing at rents affordable by homeless individuals. The project met low-income parameters and was subject to a streamlined, ministerial approval process under Senate Bill (SB) 35.

The city’s denial of the housing project resulted in a lawsuit filed against the city by the California Attorney General Rob Bonta and the California Department of Housing and Community Development (HCD).

The lawsuit, filed May 1, 2023, alleges the city’s denial of the project violates state laws, including:

  • SB 35 as enacted into law;
  • the Housing Accountability Act (HAA);
  • the Nondiscrimination in Land Use Law; and
  • the Affirmatively Furthering Fair Housing statute (AFFH).

The city denied the project claiming it did not meet zoning standards making it ineligible for SB 35 ministerial review and thus the issuance of a building permit. The Attorney General’s lawsuit sought injunctive relief requiring Elk Grove to approve the project and remain compliant with state law.

While on one hand the city denied the low-income housing project, they then approved a similarly situated, market-rate housing development located within the same neighborhood. This project did not have commercial uses on the ground floor, the main claim for denial of Oak Rose Apartments, but was approved without a low-income housing component.

The state agencies’ actions are a continued effort at supporting general population access to housing in California.

NIMBYism on display

California has the largest homeless population of any state, with 161,548 people experiencing homelessness as of January 2020, according to the U.S. Department of Housing and Urban Development (HUD).

California’s acute housing shortage stems solely because of the refusal of local governments to approve low-income housing to meet the needs of, well, lower skilled employed Californians, especially families of low and moderate income.

One key factor exacerbating the housing shortage is the local desire to enforce local ordinances which are archaic, if not racist single-family zoning in conflict with preempting state housing codes. Another is local vocal opposition to enlarging the availability of housing, evidenced primarily by the not-in-my-backyard (NIMBY) sentiment politically controlling local city councils.

These local factors make it particularly difficult for any developer or builder, and investors to develop new housing supportive of workers employed locally providing necessary low-income services.

Administratively, the objective is to set a standard for implementation which allows people to live where they work, the casita arrangement of accessory dwelling units (ADUs) being an example.

The Elk Grove planning commission and city council demonstrated NIMBY sentiments when they faulted the project in this neighborhood for not being in the “proper location.” They attempted to relocate the project to a possible alternative site, though the site suggested provided fewer resources for the future residents as remote from community services.

To combat this sort of forced housing shortage, California’s Department of Justice (DOJ) established a Housing Strike Force in 2021 aimed at advancing:

  • access to housing;
  • availability of priced right housing;
  • environmentally sustainable housing; and
  • equity in California’s housing market.

Related article:

California’s new housing strike force prepares for battle — with NIMBYs

State agencies are needed with their resources to battle it out against local political jurisdictions brazenly acting to skirt state housing laws and stifle low-income housing starts. The goal here is to take politics out of the permitting process for new housing which is administrative in nature, so real estate activity has commercial certainty of attaining objectives.

California since WWII has been increasingly committed to housing all levels of society unaffected by balkanized locals seeking to bar any equilibrium in the nature of the local population. We are a state in constant movement, with a few parochial enclaves remaining.

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