San Bernardino is first city in CA to settle housing element lawsuit; Elk Grove's Oak Rose lawsuit still pending

Democratic California Attorney General Rob Bonta (left) and Gov. Gavin Newson have
taken a no-holds-bar approach to dealing with municipalities resisting affordable housing needs. | 

California Gov. Gavin Newsom and Attorney Rob Bonta announced today the city of San Bernardino has settled a lawsuit filed by the state challenging its housing element. 

“Cities that fail to follow the law and plan for their fair share of housing will be held accountable – the status quo will not be tolerated," Newsom said in making today's announcement. "The state is providing incentives, resources and when necessary, taking legal action to ensure that communities do their part to meet the housing needs of Californians.”

Under the threat of litigation, San Bernardino agreed to update their housing plan to meet their state-mandated goals. As part of the agreement, which is subject to judicial approval, the city will construct 8,123 additional housing units by 2029.

State law requires every jurisdiction to adopt a multi-year housing plan, and the state is aggressively working to hold communities accountable for local housing needs. San Bernardino failed to adopt a compliant housing plan for the 2021-2029 time period by the October 15, 2021 statutory deadline. 

California is facing a well-documented affordable housing shortage that has led to a myriad of social problems, including homelessness. Newson and Bonta have increasingly used the full weight of state authority to force compliance on counties and municipalities under the threat of a lawsuit.

The cities of Elk Grove and Huntington Beach have been sued by the governor and attorney general. Elk Grove's rejection of the affordable supportive Oak Rose housing project compelled Bonta and Newsom to file a suit against the city, which so far has not been willing to settle. 

Bonta noted San Bernardino's wisdom in settling and not wasting taxpayer's money on costly and extended litigation.
“I applaud the City of San Bernardino’s city council, and its planning and legal team, for recognizing that public resources should be directed at collaborating, rather than further litigating, our way out of California’s housing crisis," Bonta said in the statement announcing the agreement. "State leaders are united and committed to ensuring that every city provides more affordable housing options.”

Under the settlement, the City of San Bernardino will:

  • Adopt an expedited compliant housing plan known as a housing element no later than February 7, 2024.
  • Modernize the City’s zoning code by April 17, 2024.
  • Amend the City’s emergency shelter ordinance to conform with state law, which requires streamlining the permitting process for the construction of new homeless shelters.
  • Amend its local density bonus ordinance to conform with state law. State law requires local governments to permit increased density for housing projects that contain affordable dwelling units.
  • Be subject to escalating penalties for failure to comply with the terms of the settlement, including limitations on its ability to approve zoning changes and variances, and eventually its ability to permit any development, except for residential projects containing affordable housing.

The city of San Bernardino has not issued a statement on the settlement. 
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