To bypass state housing requirements, Huntington Beach invokes environmental concerns

The City of Huntington Beach is considering a new measure that invokes environmental concerns to try to fend off state housing mandates.

At its Tuesday meeting, the city council will consider whether to put a measure on the November ballot to require residents to vote on any "city-initiated" change to the city's zoning or general plan that could negatively impact the environment. The measure, as proposed, takes direct aim at state mandates designed to encourage new housing, which offer some exemptions from state environmental laws.

The proposed ballot measure would also add language to the city's charter (like a constitution for cities) "to the effect of 'City Planning and Zoning is a local, 'municipal affair,' beyond the reach of State control or interference," according to a report about the agenda item on the city's website.

The backstory

The proposal is the city's latest effort to fend off state housing mandates. In April 2023, the city failed to meet a state requirement to plan for a set amount of housing, including affordable units, known as a housing element.

In May, a San Diego Superior Court judge ruled that Huntington Beach was required under state law to adopt a housing element. The city is appealing that decision.

And last year, a federal judge ruled against Huntington Beach in the city's effort to prove the state violated its First Amendment speech rights by requiring it to adopt a statement laying out how and why the economic and social benefits of zoning for housing outweigh some "significant and unavoidable impacts" to the environment and a city's quality of life.

The city's proposed ballot measure seeks to reignite that battle: Proponents suggest the measure state that no zoning changes led by the city can take place if an environmental review finds that the change would cause "'significant and unavoidable' negative impacts to the environment, without first receiving approval by a vote of the people." That's according to the report submitted by the three councilmembers behind the proposal, Mayor Gracey Van Der Mark, Councilmember Pat Burns, and Councilmember Casey McKeon.

McKeon said the proposal is not intended to affect individual projects where a developer requests a zoning change. "We don't want to discourage development," he said.

What proponents and critics say

McKeon said the state housing mandates are just one example of why the proposed charter amendment is needed. He said a small majority on city council shouldn't get to decide, alone, on developments that would have "significant, unavoidable negative impacts" on the city's water table, air quality, traffic, and other quality of life factors.

"A decision that big, that will permanently affect our environment, should go to the voters," he said.

As with many of the city's other fights against Sacramento, McKeon said the proposal is ultimately about maintaining local control.

"We all live here, we're closest to the people, we're closest to the community, but if they can come in and remove our local control and dictate how we zone our city, then why am I even in office?" he said.

Elizabeth Hansburg, director of the Orange County group People for Housing, called the proposed measure "short-sighted."

She said it reminded her of a wealthy northern California city that declared its entire acreage mountain lion territory to try to get around complying with SB 9, the state law requiring cities to allow multi-unit homes in single-family home neighborhoods. (Faced with ridicule and a state backlash, the town quickly reversed course and complied with the law.)

"The NIMBYs will use whatever strategy will provide the biggest barrier to housing," Hansburg said.

She also questioned the notion that blocking housing would lessen the impact on the environment. For example, she said, "the collective greenhouse gas emissions from all the people that have to commute from the Inland Empire is a greater environmental risk."

Huntington Beach Councilmember Dan Kalmick, who opposes the proposal, said it's "basically a copy and paste" of the argument that was rejected by the San Diego Superior Court judge last month. "I don't believe the state of California is going to let us continue down this path, because history says it won't," he said.

Understanding the statewide context

Taking zoning and land use issues to voters is certainly not new.

A statewide database from the nonprofit San Francisco Bay Area Planning and Urban Research Association includes some three dozen examples of cities that have passed ballot measures requiring voter approval for certain zoning changes.

Some of those measures "have landed cities in a mess of litigation," said Christopher Elmendorf, a professor at UC Davis School of Law. Elmendorf said courts have issued "conflicting decisions" on what cities can do to limit housing.

In Encinitas, a judge suspended the city's law giving voters the final say on land-use changes after residents twice refused to approve housing plans that would have satisfied state mandates. But the judge declined to permanently overrule the city's voter approval law.

In contrast, in a more recent case, a judge ruled that the state's housing requirement preempts the city of Redondo Beach's law requiring voter approval for major land use changes.

"We have two contradictory superior court decisions and no guidance, as of yet, from the court of appeals," Elmendorf said.

In the meantime, Elmendorf said, measures like the one proposed in Huntington Beach serve a political purpose — helping local officials and would-be officials develop a "brand" by fighting Sacramento's housing mandates.

"Maybe Huntington Beach voters will reward them for that or maybe voters will get sick of paying for litigation expenses," he said.

What's next?

The Huntington Beach City Council will vote on the proposed ballot measure at its July 2 meeting, which starts at 6 p.m.

If approved by a majority of the city council, staff would have 30 days to bring back proposed ballot language. Early August is the deadline to file the measure with the Orange County Registrar for placement on the November ballot.

How to attend Tuesday's city council meeting

Time: Tuesday, July 2 at 6 p.m.

In person: 2000 Main Street, Huntington Beach

Remote viewing:

• Livestream on HBTV Channel 3
• On demand
• YouTube

Note: You can also download the Cablecast Screenweave App and searching for the City of Huntington Beach channel from any Roku, Fire TV or Apple device.

Public comment: You may comment in person by signing up to speak on items both on and off the agenda. Sign ups begin 30 minutes ahead of the start of meetings.