Santa Cruz County’s “Retroactive Certification” Stunt is a Waste of Time and an Insult to Housing Law

In March, Santa Cruz County asked the California Department of Housing & Community Development (HCD) to ignore California statute, case law, and go back in time two years to change its own decision on the off chance that it will kill two housing projects, one of which the Board already approved. This absurd dysfunction is everything wrong with Californian governance. Instead of building housing, something the County was already legally obligated to do and had agreed to do in its Housing Element, the Board of Supervisors is wasting staff time on a long shot to stop two projects that have been in process for years.

Here’s the back story. Years ago, Santa Cruz County missed its deadline to plan for housing. Santa Cruz County’s Housing Element was due on December 15, 2023. This statutory deadline has never been in dispute. HCD notified them that they were in compliance in April 2024, after the deadline and 120-day grace period. In the time between the due date and the notice of compliance, two applicants submitted Builder’s Remedy projects to the County. The proposal at 841 Capitola Road was approved in February, a 5 story, 57 unit project. The 3500 Paul Sweet Road development will include 105 units when complete.

But now the County wants HCD to retroactively certify its Housing Element as if it had been compliant way back on March 15, 2024. The County’s argument hinges on a standard of "substantive review" that is both irrelevant according to the law and totally unworkable.

A PRA request of HCD communications shows that HCD conducted no “substantial review” of the Housing Element after March 15. By the County’s logic, that means their Housing Element was compliant as of that date. But the law doesn’t care about substantive review. The law says quite unequivocally that a government is certified as of the date of official notice from HCD, which here was in April 2024. This timing is written into statute and backed by case law and HCD’s own guidance. Asking HCD to invent some nebulous review standard is pointless, and would add needless confusion. The law already gives a firm date for certification. But we have no idea what is or isn't a substantial review. When does it start or stop? Is it when HCD opens the last email or holds the last meeting? When a staff member or intern makes a note in a spreadsheet?

The County is asking for HCD to invent a new standard, that it doesn’t have authority for, in contradiction of the law, so that it can open up the opportunity for residents to sue and kill two projects. If HCD were to grant this request, every city attorney in California would immediately file a motion asking to backdate their compliance: "Your Honor, we know we didn't get the letter until June, but we felt like we were substantively compliant in January!"

This is a colossal waste of time. Instead of building housing, the County is paying lawyers to draft letters asking the state to make up a new standard for a calendar date. Instead of fixing their zoning, they are trying to manipulate administrative procedure.

So YIMBY Law is taking action. Our letter will notify HCD and Santa Cruz County that this behavior won’t stand, calling on HCD to reject Santa Cruz County's eleventh-hour request. We don't have time for this. California is millions of homes short. We cannot waste another minute letting counties play games with the calendar to avoid building housing. HCD must deny the request, uphold the law, and let the builders build