Remedies when the city council breaks housing laws

Why this matters: California’s lack of available housing stalls growth of population and services. When public policy empowers more construction, it is important that the local agencies trusted to guide development also follow the rules.

No elected council members are above the law

A new law went into effect at the start of the year to advocate for Californians. It is advocating for Californians against local city, county and regional agencies who control significant aspects of our lives.

Assembly bill 712 holds local agencies — any public agency that isn’t a state agency — accountable by assessing politically painful money penalties when they fail to follow housing reform laws. The message to government officials is to lean into and run with housing laws. Otherwise, they risk violating the law and causing local taxpayers to pay for ignoring housing developer’s rights.

When an applicant, namely your client, needs a permit for a housing development project designed for lease or sale, and uses the courts to enforce the housing reform law against a local or state agency’s violation and is successful, they are entitled to:

reasonable attorney’s fees and costs; and
protection from the agency requiring the developer to hold harmless – indemnify – the agency as a condition of issuing a permit for the project. [GC §65914.2(b)]

The housing reform laws covered by this law for use by builders include any law, regulation or provision that benefits residential development applications or limits an agency’s actions for the benefit of a housing development project. [GC §65914.2(d)(2)]

In addition, when a local agency undermines transparency and violates housing reform, they are subject to a fine. This fine is deposited into a local housing trust fund or a Building Homes and Jobs Trust Fund. [GC §§ 65589.5(k)(1)(B)]

An applicant may pursue the agency to pay this fine by bringing an action against the agency without first taking any procedural steps to make and process a claim administratively against the public entity. [GC §§65914.2(b)(2)(B); 910.2]

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Enforcement plans

To move forward, the applicant must give written notice of their intent to file a court action against the agency at least 60 days before filing the action. [GC §65914.2(b)(2)(A)(i)(III)]

When a local agency has previously been warned in writing that their action or inaction violates housing reform law by the Attorney General or the Department of Housing and Community Development the fines are set at a minimum of:

$10,000 per housing unit within the proposed housing development project on the date the application was complete; or
$50,000 per violation when the project has four or fewer units. [GC §§ 65589.5(k)(1)(B); 65914.2(b)(2)(A)(i)(I)]

Repeat violations of the same housing reform law by the local agency within the same planning period — the revision time between one due date for the local agency’s housing element and the due date for the next element — results in a fine five times the minimum fine. [GC §65914.2(b)(2)(A)(ii)]

This financial consequence pushes back against those who use jurisdictional boundaries to ignore established housing reform. It will take extending beyond old habits to reach an inclusive and growing California.

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