Administrative Procedures Are The Exclusive Remedy For A Municipality To Challenge Its Allocation Of A Regional Housing Need Assessment

In City of Irvine v. Southern California Association of Governments, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., June 30, 2009), a California Court of Appeal considered whether the administrative procedures established by the California Legislature to calculate the regional housing needs assessment (“RHNA”) to be allocated to a local government is intended to be the exclusive remedy for the municipality to challenge the RHNA assessment and thereby preclude judicial review of the decision. The Court of Appeal held that the administrative procedure is the exclusive remedy and judicial review of the RHNA assessment is precluded.


As a municipal corporation, the City of Irvine (“City”), is required under Government Code section 65300 to adopt a comprehensive General Plan to govern land use and development. The General Plan must include a Housing Element that identifies existing and projected housing needs for all income levels.

The Southern California Association of Governments (“Association”) is a public agency that covers several counties in Southern California and the incorporated cities within their boundaries. In 2006, Association began to develop a RHNA for the 2006-2014 planning period. In 2007, Association issued a draft regional housing need allocation plan that allotted 35,000 residential units to City, an amount that was allegedly equal to 43 percent of Orange County’s entire regional housing need. City filed an appeal of the proposed allocation with Association’s RHNA appeals board. The appeals board denied City’s appeal. Association issued a proposed final allocation plan that increased City’s allocation by over 300 units. City submitted a written opposition to this plan, but the plan was approved without change.

City filed a petition in the Superior Court of Orange County seeking to set aside Association’s draft allocation, the denial of City’s appeal, and the final allocation plan. The City also sought a recalculation of its allocation of new housing units. Association asserted that the court lacked jurisdiction over City’s claims because California statutes do not allow for judicial review of RHNA assessments. The Superior Court dismissed City’s action against Association.


The Court of Appeal affirmed the judgment of the Superior Court. The issue before the Court of Appeal was “whether the administrative procedure created to determine a municipality’s RHNA allocation precludes judicial review of that decision.” The court held that judicial review is precluded.

The Housing Element of a municipality’s General Plan must contain an assessment of housing needs and an inventory of resources and constraints related to those housing needs. A municipality must also provide a quantification of existing and projected housing needs for all income levels that includes an analysis of its share of the regional housing need.

In order to determine each municipality’s regional housing need allocation, Government Code section 65584, subdivision (b), requires that the California Department of Housing and Community Development (“HCD”) consult with each council of government (“Council”) to determine that region’s existing and projected housing needs. The HCD must meet and consult with the Council to determine the assumptions and methodology that will be used to determine that region’s housing needs. The HCD must then use the information obtained to make a determination of that region’s existing and projected housing needs.

A Council may object to the HCD’s decision on limited grounds, but any objection must include a proposed alternative to the HCD’s determination of regional housing needs. The HCD must then consider the objection and “make a final written determination of the region’s existing and projected housing need that includes an explanation of the information upon which the determination was made.”

After the HCD makes its determination, the Council must then develop a plan to distribute the regional housing need to the cities and counties within its region. The Council must conduct at least one public hearing on the proposed methodology. After the public hearing is conducted and the Council makes any appropriate revisions, the Council must adopt a final regional housing need allocation methodology. After it adopts a methodology, the Council must prepare and revise a draft allocation plan for the regional housing need assessment.

After a local government receives a draft allocation, it has 60 days to request a revision of its share of the regional housing need. The Council then must decide whether to accept, reject, or modify, the proposed revision presented by the local government. The local government may appeal the draft allocation if (1) the Council has failed to adequately consider the information submitted to it, (2) there has been a significant and unforeseen change in circumstances, or (3) the Council has failed to determine its share of the regional housing needs in accordance with the methodology established. The Council must then conduct a public hearing on the appeal and issue a proposed final allocation. After the final allocation plan is adopted, the HCD must determine whether the final allocation plan is consistent with the existing and projected housing need for the region and revise the plan if necessary.

The RHNA statutes do not expressly bar a municipality from mounting a judicial challenge to an RHNA allocation. The Court of Appeal, however, determined that the summary of the statutory procedures outlined above “reflects a clear intent on the part of the Legislature to render this process immune from judicial intervention.”

The RHNA allocation process requires several intricate steps including (1) setting statewide and regional housing goals and creating a methodology to quantify the housing goals and distribute the housing needs throughout the state; (2) requiring each council of government to create a methodology for distributing its region’s needs to local governments; and (3) allowing a local government to request review and reassessment of the housing need allocated to it. These steps must all be completed prior to the time when a municipality may revise the housing element of its general plan. If one local government obtains a downward revision of its RHNA allocation, the council of governments must reallocate the excess units to other jurisdictions. If a jurisdiction is successful in its appeal, other jurisdictions are affected. The court opined, “Consequentially, allowing this judicial action to proceed would require the joining of all affected local jurisdictions in the lawsuit, thereby precluding each affected municipality’s completion of its housing element revision.”

The court rejected City’s argument that construing the RHNA statutes to eliminate judicial review of allocation decisions is absurd and unconstitutional because it makes Association “not only the ‘executive decision-maker for housing allocations’ but ‘also the final judge, jury and appellate tribunal for any alleged violations of those laws.'” The court found that neither Association nor any other single entity has complete control over the RHNA allocations and that local governments may seek revisions of draft plans through a Council’s appeals board.

Finally, the court found that the Legislature’s 2004 amendments to the RHNA statute which eliminated a reference to judicial review of determinations made by a council of government reinforces the court’s decision that the Legislature intended to eliminate judicial remedies for a municipality that seeks to challenge its RHNA allocation.


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