Protecting Public Participation and Accountability in California's Housing Element Law
/Why the La Habra Case Matters: Protecting Public Participation and Accountability in Housing Element Law — and Why YIMBY Law Co-Sponsored AB 2023
An important appellate case is now underway in California: Californians for Homeownership v. City of La Habra. At stake is whether local governments can bypass the clear public participation and state oversight requirements built into housing element law. YIMBY Law filed an amicus brief in support of enforcement, because the outcome will have major implications for the integrity of California’s housing planning framework.
The trial court in this case excused La Habra’s violations of Housing Element law, concluding that the city’s failure to provide proper notice and public comment opportunities was “harmless.” If upheld, that ruling would give cities across California a roadmap to adopt housing elements without meaningful public review, undermining one of the most important accountability tools in state housing law.
A Brief Overview of Housing Elements
California is in the midst of a housing affordability crisis of historic proportions. More than half of renters spend over 30% of their income on rent, and home prices are now more than 11 times the average household income statewide. The Legislature has found that this affordability crisis is fundamentally a housing supply crisis, caused in large part by local governments that obstruct or delay housing approvals.
To ensure every city and county does its part, California law requires each local government to adopt a housing element—a binding component of its general plan that sets out how the jurisdiction will accommodate its fair share of regional housing needs. Housing elements aren’t symbolic. They carry legal force, dictating where homes can be built and binding cities to follow through on promised rezonings and programs. Housing elements are supposed to include:
A realistic inventory of land suitable for housing,
Programs to remove barriers to development,
Policies to affirmatively further fair housing, and
Specific commitments to rezone land where needed.
These elements are not optional planning exercises. They carry legal force. A city that lists a site in its housing element inventory must accommodate the level of housing projected for that site, and promises to rezone must be carried out or else developers gain rights to proceed without the promised rezoning. If a city lacks a compliant housing element, it becomes subject to the Builder’s Remedy, which allows qualifying housing projects with affordable units to bypass local zoning restrictions
Oversight: State, Public, and Courts
Recognizing the temptation for local governments to shirk these obligations, the Legislature designed a three-part accountability framework:
State oversight. Local governments must submit drafts to the Department of Housing and Community Development (HCD), which reviews whether the element complies with state law.
Public oversight. The public must be given at least 30 days to review and comment on draft housing elements and any revisions made after HCD rejection, followed by time for the city to consider those comments, and 7 days of notice for any further revisions, prior to sending those revisions back to HCD for review.
Judicial oversight. Courts can compel compliance within 120 days if a housing element is deficient.
This framework lives in Government Code §65585, which sets out a clear process for how cities must update or amend their housing elements:
Step 1: Local Public Review Before Submitting to HCD
Before sending any draft housing element to the Department of Housing and Community Development (HCD), the city or county must publish the draft for at least 30 days of public review and comment.
After the 30-day period closes, the local government must take at least 10 business days to consider and incorporate public input.
This ensures that the initial draft reflects community knowledge before HCD reviews it.
Step 2: Submit Draft to HCD for Review
Once the initial public review period has been completed, the local government submits the draft housing element to HCD.
HCD then has up to 90 days to review and issue written findings on whether the draft substantially complies with state housing element law.
Step 3: Respond to HCD’s Findings
If HCD finds the draft deficient, the city has only two lawful options under §65585(e)–(f):
Adopt the rejected draft “as-is” — but only if the legislative body (city council or board of supervisors) adopts written findings explaining why it believes the draft nevertheless complies; or
Revise the draft in response to HCD’s findings.
Step 4: Public Review of Revised Drafts
If the city chooses to revise the draft, it must again provide:
At least 30 days of public review and comment on the revised draft;
At least 10 business days to consider and incorporate public comments; and
At least 7 days of public notice before adoption of the revised draft.
Only after this process may the city resubmit the revised draft to HCD for review.
Step 5: HCD’s Second (or Subsequent) Review
HCD has up to 60 days to review a revised draft.
If HCD again finds deficiencies, the cycle repeats: the city may either adopt the rejected draft with findings, or revise it and go back through the required notice-and-comment process.
Step 6: Final Adoption by the Legislative Body
Once HCD issues a letter finding the draft in substantial compliance, the legislative body may adopt the housing element.
Alternatively, the legislative body may adopt an HCD-rejected draft, but only if it makes explicit findings disputing HCD’s determination.
Step 7: Post-Adoption Amendments
After adoption, any amendment to the housing element must also be submitted to HCD for review at least 60 days before adoption. Essentially Steps Two through Six must be repeated again. Only with slightly shorter timelines for HCD review.
Amendments, like the initial element, must be adopted by the legislative body after public notice and comment.
This is not optional. It is the statutory backbone of housing element law, designed to ensure transparency, accountability, and public participation at each stage of revision.
The La Habra Problem: Staff Adoption and Closed-Door Revisions
The City of La Habra illustrates what happens when cities ignore §65585.
Three separate times, HCD found La Habra’s housing element noncompliant—in November 2021, May 2022, and November 2022. Each time, HCD identified deficiencies and provided guidance on what needed to change.
After HCD’s second rejection in May 2022, the City Council purported to adopt the plan anyway—without resubmitting the revised draft to HCD, as §65585 requires.
In September 2022, the council adopted what it called a “final” version of the housing element. But at the same time, it authorized staff to continue making changes to respond to HCD’s findings behind closed doors.
Those staff-made edits were never released for the required 30-day notice-and-comment process. Instead, the city simply circulated a “final” plan by email with 10 days of “review”—but not an invitation to submit comments—and then sent that version to HCD.
This “staff adoption” approach violated both the letter and spirit of §65585. It bypassed the legislative body’s legally required duty to act to adopt the housing element, and cut the public out of the revision process.
Why Public Participation Cannot Be Skipped
Public engagement is not a procedural technicality—it is essential. Advocates and community members often catch flaws that HCD cannot, given its limited resources and distance from local conditions.
Examples from recent housing element reviews conducted by volunteer watchdogs include:
Orinda listing a 1-foot-wide strip of land and a hillside in a fire zone as “housing sites.”
San Francisco proposing low-income housing next to a contaminated site with toxic metals.
Walnut Creek including parcels in its inventory that turned out to be owned by a water district unwilling to sell or develop their land.
Capitola adding commitments to redevelop its mall for nearly 1,800 homes after public pressure.
Without these interventions, local governments could submit glossy but unrealistic plans, leaving their housing needs unmet for another eight-year cycle. The La Habra case tests whether these rights to meaningful participation are enforceable.
The Trial Court’s Error: Harmlessness Misapplied
When Californians for Homeownership challenged La Habra’s unlawful process, the trial court acknowledged the violations but concluded they were “harmless.” The court applied a generic standard requiring the challenger to prove that public input would have changed the city’s decision.
This was wrong. Housing element challenges are governed by the substantial compliance standard: the question is whether the city complied with the objectives of the statute. Denying the public its right to participate is itself a failure of substantial compliance.
By excusing La Habra’s violation, the trial court’s ruling threatened to gut one of the most important accountability mechanisms in state housing law.
AB 2023: Legislative Fix to Prevent “Staff Adoption”
The La Habra case underscores why YIMBY Law co-sponsored AB 2023 (Quirk-Silva, 2024). For years, cities exploited ambiguities in §65585 to argue they could “self-certify” compliance or allow staff to finalize housing elements without full public review. Courts compounded the problem in Fonseca v. City of Gilroy (2007), which gave weight to HCD’s certification letters but not its rejection letters—creating a double standard that emboldened local governments to ignore HCD when it found their plans deficient
AB 2023 clarified and strengthened §65585 by reaffirming that any change made after HCD rejection must go through the full 30-day notice-and-comment process, with 10 days for review and 7 days’ notice of revisions, as well as being submitted to HCD for another round of review prior to local adoption. The bill also reinforces that HCD’s rejection letters are part of the official compliance framework, not advisory notes that cities can disregard, and removed the double-standard, giving weight to both HCD’s certification and rejection letters.
AB 2023 was written to shut the door on the very practices La Habra engaged in.
Why YIMBY Law Weighed In
YIMBY Law wrote an amicus brief in La Habra in support of Californians for Homeownership because the trial court’s ruling threatened to normalize statutory violations. By allowing cities to cut corners and by applying the wrong prejudice standard, the court made it harder for advocates and residents to enforce their rights.
Our role as co-sponsor of AB 2023 made it even more important to weigh in. This case tests the very abuses that AB 2023 was written to correct. A strong appellate ruling will reinforce that legislative fix and ensure that cities across California cannot repeat La Habra’s mistakes.
The La Habra case is about more than one city’s noncompliance. It is about whether California will allow local governments to hollow out the housing element process—or whether we will insist on transparency, accountability, and meaningful public participation.
By filing an amicus brief and co-sponsoring AB 2023, YIMBY Law is fighting to protect the integrity of housing element law. Without enforcement, laws are toothless, and the housing crisis deepens. With enforcement, every community must do its fair share to plan for new homes—laying the groundwork for a more affordable and equitable California.