Orange County Council of Governments v. Velasquez CA2/4 ( 2023 )

Filed 7/27/23 Orange County Council of Governments v. Velasquez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ORANGE COUNTY COUNCIL B317856
OF GOVERNMENTS, et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 21STCP01970)
v.
GUSTAVO VELASQUEZ, et al.,
Defendants and
Respondents,
SOUTHERN CALIFORNIA
ASSOCIATION OF
GOVERNMENTS,
Real Party in Interest.
Appeal from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
Aleshire & Wynder, Fred Galante, June S. Ailin, Pam
K. Lee, and Alison S. Flowers, for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Daniel A. Olivas, Senior
Assistant Attorney General, and Jamee Jordan Patterson
and Erica B. Lee, Deputy Attorneys General, for Defendants
and Respondents.
Meyers Nave, Deborah J. Fox and Margaret W.
Rosequist, for Real Party in Interest.
Public Law Center, Richard Walker and Jonathan
Bremen; Public Interest Law Project, Craig Castellanet,
Michael Rawson, and Ugochi Anaebere-Nicholson;
Community Legal Aid SoCal, Sarah Reisman and Erica
Embree, as Amici Curiae on behalf of Respondents.
_______________________________________________________
Plaintiffs Orange County Council of Governments
(OCCOG), the City of Redondo Beach, City of Lakewood,
City of Torrance, City of Cerritos, City of Downey, and City
of Whittier appeal from a judgment dismissing their first
amended petition for writ of mandate (Code Civ. Proc.,
§ 1085) seeking to direct Gustavo Velasquez, Director of
Department of Housing and Community Development, and
the California Department of Housing and Community
Development (collectively, the Department of Housing) to set
aside its housing needs determination for the region
overseen by real party in interest Southern California
Association of Governments (SC Association of
Governments). The Fourth District Court of Appeal held in
2
City of Irvine v. Southern California Assn. of Governments
(2009) 175 Cal.App.4th 506 (City of Irvine), that a local
government’s allocation of the regional housing needs
assessment (RHNA) made under Government Code section
65584 et seq.1 is precluded from judicial review. We
conclude City of Irvine’s reasoning applies to plaintiffs’
contentions concerning the Department of Housing’s RHNA
determination such that plaintiffs’ action is barred.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed the operative first amended petition for
writ of mandate seeking an order directing the Department
of Housing to vacate its RHNA determination for the SC
Association of Governments region and conduct a new
assessment. As alleged in the first amended petition, of
which we assume the truth of the properly pleaded factual
allegations (Evans v. City of Berkeley (2006) 38 Cal.4th 1,
20), the Department of Housing is “tasked with . . .
determining the regional housing needs assessment for each
regional planning body (known as a “council of
governments”) in the State, and reviewing and approving
housing elements of local governments to meet the housing
needs of their communities.” Pursuant to section 65300,
each city and county in California is required to adopt a
general plan, which “is a comprehensive, long-term plan for
1 All further statutory references are to the Government Code,
unless otherwise noted.
3
the development of a city, including any land outside its
boundaries that the city believes is related to its planning.”
A housing element is a required component of the general
plan.
The Department of Housing oversees the RHNA
process. At least two years before scheduled housing
element updates within a region are set to occur, the
Department of Housing will assign a region its share of the
state’s housing needs in consultation with the council of
governments located within that region. SC Association of
Governments is the regional council of governments for
several Southern California counties, including Imperial
County, Los Angeles County, Orange County, Riverside
County, San Bernardino County, and Ventura County, and
the incorporated cities within each of these counties. SC
Association of Governments “serves as a planning
organization on behalf of its members, which include six
counties and 191 cities, to develop . . . long-range regional
housing needs allocations.”
Plaintiffs City of Redondo Beach, City of Lakewood,
City of Torrance, City of Cerritos, City of Downey, and City
of Whittier are members of SC Association of Governments
and subject to the RHNA determination issued by the
Department of Housing and allocated by SC Association of
Governments. Plaintiff OCCOG “is a joint powers public
agency organized and existing pursuant to the Joint Exercise
4
of Powers Act . . . .”2 OCCOG “serves as a sub-regional
planning organization on behalf of its thirty-four members,”
and “[i]n conjunction with [SC Association of Governments],
OCCOG assists in the development and analysis of planning
documents prepared as part of the allocation of its members’
regional housing needs assessment under statewide land use
laws.”
Plaintiffs allege that “in 2019, [SC Association of
Governments] and [the Department of Housing] began
developing the RHNA determination for the [relevant
Southern California] region for the 2021-2029 planning
period (also known as the 6th cycle).” At the same time, SC
Association of Governments began developing its
methodology for allocating the projected regional RHNA
determination among the local governments within its
region. On August 22, 2019, the Department of Housing
provided a letter to SC Association of Governments
informing it of the Department’s draft determination for the
region. The Department of Housing assigned a total of
1,344,740 dwelling units as the RHNA determination for the
region to be allocated among the local governments.
On September 18, 2019, SC Association of
Governments submitted a formal objection to the
Department of Housing’s draft determination of regional
2 Despite its name, plaintiff OCCOG is not a council of
governments as defined by the RHNA statutes. SC Association of
Governments is the council of governments for the relevant region in
this action.
5
housing needs. The Department of Housing did not alter its
RHNA approach based on SC Association of Governments’
objection, other than using more recent “cost-burden” rates
for households.3 On October 15, 2019, the Department of
Housing provided SC Association of Governments with its
final RHNA determination for the region. Based on the
more recent data, the Department of Housing determined
the housing need for the region was slightly less than
previously thought, 1,341,827 total dwelling units.
OCCOG participated in and contributed to SC
Association of Governments’ development of its RHNA
methodology throughout 2019. OCCOG sent a letter to SC
Association of Governments regarding its RHNA
methodology and regional determination. OCCOG asserted
in the letter that the Department of Housing failed to comply
with the RHNA statutes when calculating the regional
determination. SC Association of Governments
subsequently submitted its draft RHNA methodology for the
6th cycle for the Department of Housing’s review and
reiterated its earlier objection regarding the Department of
Housing’s RHNA determination of the regional housing
need. The Department of Housing then sent SC Association
of Governments a letter advising that it completed its review
of SC Association of Governments’ RHNA methodology and
3 The first amended petition defines cost-burdened households as
the share of households by income level paying more than 30% of
household income on housing costs.
6
found that it furthered the statutory objectives of RHNA
statutes.
After obtaining approval from the Department of
Housing for its RHNA methodology, on or about September
3, 2020, SC Association of Governments notified the local
governments within the region of each one’s share of the
RHNA allocation. SC Association of Governments received
52 appeals from local governments in its region; all but two
were denied.
Plaintiffs then filed the first amended petition seeking
a “writ of mandate directing [the Department of Housing] to
vacate and set aside” its RHNA determination for SC
Association of Governments’ region, change the input of
information utilized in calculating its RHNA determination,
and conduct a new assessment for the region. Plaintiffs
contend that “[t]he 1,341,827 total dwelling units represents
more than twice the number of projected housing units
needed by the end of the 6th Cycle in 2029.” Plaintiffs argue
that this is because the Department of Housing’s RHNA
determination is based on “[The Department of Housing’s]
use of the wrong population forecast, comparable region, and
vacancy rates, as well as new methodology that includes
overcrowding and cost burdening factors that [the
Department of Housing] did not previously consider in its
typical methodology for prior housing cycles.”
The Department of Housing and SC Association of
Governments each filed demurrers to the first amended
petition arguing that the trial court lacked jurisdiction over
7
the RHNA challenges based on the ruling in City of Irvine,
supra, 175 Cal.App.4th 506. The trial court agreed it lacked
jurisdiction over the writ claim as pleaded in the first
amended petition, and after hearing argument, sustained
the demurrers without leave to amend. The court entered
judgment dismissing the action, and plaintiffs timely filed
this appeal.4
DISCUSSION
A. Standard of Review
“Because the function of a demurrer is to test the
sufficiency of a pleading as a matter of law, we apply the de
novo standard of review in an appeal following the
sustaining of a demurrer without leave to amend.”
(California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.) “‘We treat the demurrer as admitting
all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context.
[Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a
cause of action. [Citation.] And when it is sustained without
4 We have granted an application of the Kennedy Commission,
Community Legal Aid SoCal, and Public Interest Law Project to file an
amicus curiae brief in support of the Department of Housing. We have
considered the brief and plaintiffs’ response to that brief.
8
leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we
affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
“We review the correctness of the trial court’s action in
sustaining the demurrer, not the court’s statement of
reasons for its action.” (Martis Camp Community Assn. v.
County of Placer (2020) 53 Cal.App.5th 569, 610.)
Accordingly, “[w]e affirm the judgment if it is correct for any
reason, regardless of the trial court’s stated reasons.” (MKB
Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796,
802.)
B. Statutory Overview
“Under the Planning and Zoning Law (§ 65000 et seq.),
local governments must prepare and adopt general plans for
their ‘long-term . . . physical development . . . .’ (§ 65300.)
One of the essential components of a general plan is a
housing element. (§ 65302, subd. (c).)” (City of Irvine, supra,
175 Cal.App.4th at p. 512.)
The Legislature enacted regional housing needs laws to
address California’s shortage of affordable housing and has
declared “[t]he availability of housing is of vital statewide
importance, and the early attainment of decent housing and
a suitable living environment for every Californian . . . is a
9
priority of the highest order.” (§ 65580, subd. (a); see also
San Franciscans for Livable Neighborhoods v. City and
County of San Francisco (2018) 26 Cal.App.5th 596, 610
[“The Legislature enacted the regional housing needs
assessment (RHNA) procedure . . . to address the state’s
shortage of affordable housing”].) The early attainment of
this goal, together with the added goal of providing “housing
affordable to low- and moderate-income households,”
requires the cooperative participation of government at all
levels. (§ 65580, subds. (b) & (c).)
The Legislature’s intent is, among other things, “[t]o
assure that counties and cities recognize their
responsibilities in contributing to the attainment of the state
housing goal,” “[t]o assure that counties and cities will
prepare and implement housing elements which . . . will
move toward attainment of the state housing goal,” and “[t]o
ensure that each local government cooperates with other
local governments in order to address regional housing
needs.” (§ 65581, subds. (a), (b), & (d).)
“A municipality’s housing element ‘consist[s] of an
identification and analysis of existing and projected housing
needs and a statement of goals, policies, quantified
objectives, financial resources, and scheduled programs for
the preservation, improvement, and development of
housing.’ (§ 65583.) It must contain ‘[a]n assessment of
housing needs and an inventory of resources and constraints
relevant to the meeting of these needs.’ (§ 65583, subd. (a).)”
(City of Irvine, supra, 175 Cal.App.4th at p. 513.) The
10
assessment and inventory shall include “‘a quantification of
the locality’s existing and projected housing needs for all
income levels’ that ‘include[s] the locality’s share of the
regional housing need in accordance with [s]ection 65584’
(§ 65583, subd. (a)(1)) . . . .” (Ibid.)
Section 65584 requires the Department of Housing, “in
consultation with each council of governments, [to]
determine each region’s existing and projected housing need
pursuant to Section 65584.01 at least two years prior to the
scheduled revision required pursuant to Section 65588.”
“This determination must be based on the ‘objectives’ of
equitably increasing the housing supply, type, and
affordability, encouraging conservation of agricultural and
environmental resources through the promotion of infill
development, improving the relationship between housing
and jobs in the region, and using the allocation of housing
needs by income category to eliminate disparities between
communities in the region. (§ 65584, subd. (d).)” (City of
Irvine, supra, 175 Cal.App.4th at p. 513.)
“At least 26 months prior to the scheduled [housing
element] revision . . . and prior to developing the existing
and projected housing need for a region, [the Department of
Housing] shall meet and consult with the council of
governments regarding the assumptions and methodology to
be used by the department to determine the region’s housing
needs.” (§ 65584.01, subd. (b)(1).) After this consultation,
the Department of Housing must “make a determination of
the region’s existing and projected housing need based upon
11
the assumptions and methodology determined pursuant to
subdivision (b),” which must “reflect the achievement of a
feasible balance between jobs and housing within the region
using the regional employment projections in the applicable
regional transportation plan.” (§ 65584.01, subd. (c)(1).)
“Within 30 days following notice of the determination from
[the Department of Housing], the council of governments
may file an objection to [the Department of Housing’s]
determination of the region’s existing and projected housing
need with [the Department of Housing].” (Ibid.)
The objection shall be based on either of the following:
“(A) The department failed to base its
determination on the population projection for
the region established pursuant to subdivision
(a), and shall identify the population projection
which the council of governments believes should
instead be used for the determination and explain
the basis for its rationale.
(B) The regional housing need determined by the
department is not a reasonable application of the
methodology and assumptions determined
pursuant to subdivision (b). The objection shall
include a proposed alternative determination of
its regional housing need based upon the
determinations made in subdivision (b), including
analysis of why the proposed alternative would be
12
a more reasonable application of the methodology
and assumptions determined pursuant to
subdivision (b).” (§ 65584.01, subd. (c)(2)(A)(B).)
Within 45 days of receiving an objection filed by a
council of governments, the Department of Housing
“shall 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.”
(§ 65584.01, subd. (c)(3).) This regional housing needs
determination by the Department of Housing is what
plaintiffs assert they are challenging in their first
amended petition.
A council of governments shall then “develop, in
consultation with [the Department of Housing], a proposed
methodology for distributing the existing and projected
regional housing need to cities, counties, and cities and
counties within the region . . . .” (§ 65584.04, subd. (a).) The
council of governments must “survey each of its member
jurisdictions to request . . . information regarding [a list of]
factors . . . that will allow the development of a [distribution]
methodology.” (§ 65584.04, subd. (b)(1).) “Public
participation and access shall be required in the
development of the methodology and in the process of
drafting and adoption of the allocation of the regional
housing needs. . . .” (§ 65584.04, subd. (d).) After completion
of the methodology development process, the council of
13
governments “shall provide notice of the adoption of the
methodology to the jurisdictions within the region, . . . and to
[the Department of Housing].” (§ 65584.04, subd. (k).)
“After adopting a methodology, the next step involve[s]
the preparation and revision of a draft allocation plan for the
RHNA. It requires a ‘council of governments . . . [to]
distribute a draft allocation of regional housing needs to
each local government in the region or subregion’ ‘[a]t least
one and one-half years prior to the scheduled [housing
element] revision . . . .’ (§ 65584.05, subd. (a).) ‘The draft
allocation shall include the underlying data and
methodology on which the allocation is based.’” (City of
Irvine, supra, 175 Cal.App.4th at p. 515.)
Section 65584.05 authorizes local governments to file
an appeal of the RHNA draft allocation and outlines the
procedures for doing so. The council of governments “shall
adjust allocations to local governments based upon the
results of the appeals process. . . . The total distribution of
housing need shall not equal less than the regional housing
need . . . .” (§ 65584.05, subd. (f).) “The final determination
on an appeal may require the council of governments or
delegate subregion, as applicable, to adjust the share of the
regional housing need allocated to one or more local
governments that are not the subject of an appeal.”
(§ 65584.05, subd. (e)(1).) “Within 45 days after the issuance
of the proposed final allocation plan by the council of
governments and each delegate subregion, as applicable, the
council of governments shall hold a public hearing to adopt a
14
final allocation plan. . . . The council of governments shall
submit its final allocation plan to [the Department of
Housing] within three days of adoption. Within 30 days
after the [Department of Housing’s] receipt of the final
allocation plan adopted by the council of governments, [the
Department of Housing] shall determine if the final
allocation plan is consistent with the existing and projected
housing need for the region . . . .” (§ 65584.05, subd. (g).)
C. City of Irvine
In City of Irvine, supra, 175 Cal.App.4th 506, SC
Association of Governments issued a draft RHNA allocation
that allotted 35,000 residential units to the City of Irvine
(Irvine). (Id. at p. 511.) Irvine filed an appeal of the
proposed allocation with SC Association of Governments’
appeals board, and it issued a written decision denying the
appeal. (Ibid.) After revising the allocations of certain other
jurisdictions, SC Association of Governments issued a
proposed final RHNA allocation that increased Irvine’s
allocation by more than 300 units. (Ibid.) Over Irvine’s
opposition, SC Association of Governments approved the
final allocation plan without change. (Ibid.) Irvine then
filed a petition seeking to “‘[v]acate and set aside’” the draft
allocation, the appeals board’s denial of its appeal, and the
regional council’s final allocation plan, plus a
“‘[r]ecalculat[ion of plaintiff’s] allocation of new housing
units . . . .’” (City of Irvine, supra, 175 Cal.App.4th at
pp. 511–512.) SC Association of Governments filed a
15
demurrer, arguing that the trial court lacked “‘jurisdiction of
the subject of the petition’” for several reasons, including
that “the Legislature’s 2004 amendments to the RHNA
statutes ‘specifically removed the judicial writ remedy from
the . . . statute.’” (Ibid.) The trial court sustained the
demurrer without leave to amend and entered judgment
dismissing the action. (Ibid.) Irvine appealed. (Ibid.)
The Court of Appeal began its analysis of judicial
jurisdiction by acknowledging that Article VI, section 10 of
the California Constitution gives “‘[t]he Supreme Court,
courts of appeal, superior courts, and their judges . . .
original jurisdiction in proceedings for extraordinary relief in
the nature of mandamus, certiorari, and prohibition.’” (City
of Irvine, supra, 175 Cal.App.4th at p. 516.) “‘[T]he
Legislature cannot alter the jurisdiction over extraordinary
writs which is prescribed by the Constitution.’”
(Ibid., quoting Modern Barber Col. v. Cal. Emp. Stab. Com.
(1948) 31 Cal.2d 720, 729.) However, “the Legislature may
indirectly regulate the jurisdiction of courts by abolishing or
limiting substantial rights [citation] and prescribing the
procedure by which the courts exercise their jurisdiction
[Citation].” (City of Irvine, supra, 175 Cal.App.4th at p. 516.)
The Legislature’s intent to defeat the exercise of the court’s
jurisdiction must be expressly provided or clearly intended.
(Id. at p. 516–517.)
The Court of Appeal then found that “the nature and
scope of a general plan’s housing element and the length and
intricacy of the process created to determine a municipality’s
16
RHNA allocation reflects a clear intent on the part of the
Legislature to render this process immune from judicial
intervention.” (City of Irvine, supra, 175 Cal.App.4th at
p. 517.) The court summarized the “intricate steps” of the
RHNA allocation process as follows:
“First, it requires the setting of statewide and
regional housing goals and the creation of a
methodology to quantify the goals and distribute
the projected additional housing needs
throughout the state. This step mandates
consultation between [the Department of
Housing] and the respective councils of
government. Second, each respective council of
government must create a methodology for
distributing its region’s housing needs to the local
governments under its jurisdiction. This requires
not only consultation between the regional
council of government and local governments, but
also public hearings to obtain input from a wide
variety of concerned parties. Third, the council of
government’s proposed allocation of housing units
to local governments is subject to review and
reassessment at the request of individual
governments. Ultimately, each council of
government’s final RHNA allocation is subject to
further review and revision by [the Department
of Housing] to ensure it is consistent with the
17
region’s housing needs.” (City of Irvine, supra,
175 Cal.App.4th at p. 517.)
The Court of Appeal concluded that “the administrative
procedure created to determine a municipality’s RHNA
allocation precludes judicial review of that decision.” (City of
Irvine, supra, 175 Cal.App.4th at p. 512.)
Although Irvine argued that it was seeking only to
correct its own RHNA allocation, the court noted that
“[u]nder the RHNA procedure, when a local government
successfully obtains a downward revision of its RHNA
allocation, the council of governments must then reallocate
the excess units to other jurisdictions within the region.”
(City of Irvine, supra, 175 Cal.App.4th at p. 518.)
Consequently, allowing judicial review “would require the
joining of all affected local jurisdictions in the lawsuit,
thereby precluding each affected municipality’s completion of
its housing element revision.” (Ibid.)
Moreover, the court cited Tri–County Special Educ.
Local Plan Area v. County of Tuolumne (2004)
123 Cal.App.4th 563, 578, for the proposition that “‘a
governmental entity has no vested, individual rights in the
administration of a particular program,’” and determined
that “the structure and scope of the RHNA statutes reflect a
clear intent to vest in [the Department of Housing] and the
respective council of governments, along with the extensive
input from local governments and the public, the authority
to set the RHNA allocation for each local government.”
18
(City of Irvine, supra, 175 Cal.App.4th at p. 519.) The court
rejected Irvine’s contentions that precluding judicial review
would be unconstitutional. (Id. at p. 520.) The court
reasoned that the RHNA process was primarily legislative
and required the involvement of many different entities,
none of which had complete control of the scheme. (Ibid.) It
noted that even in cases where investigative, prosecutorial,
and adjudicatory functions were combined within a single
administrative agency, due process could be provided. (Ibid.)
Further, Irvine was not without an adequate alternative
remedy for having to account for 100 percent of the housing
allocation assigned to it, as there were statutory exceptions
that it could utilize if appropriate. (Id. at pp. 520–521.)
Lastly, the City of Irvine court stated that the “2004
amendments to the RHNA statutes” supported its decision.
(City of Irvine, supra, 175 Cal.App.4th at p. 521.) “Before
those amendments, former section 65584, subdivision (c)(4)
declared, ‘The determination of the council of governments
[concerning a city or county’s share of the state housing
need] . . . shall be subject to judicial review pursuant to
Section 1094.5 of the Code of Civil Procedure.’ This
provision was eliminated in 2004.” (Ibid.) The court
reasoned that “the 2004 repeal of the judicial remedy
reinforces our conclusion the Legislature clearly intended to
eliminate judicial remedies for challenging a municipality’s
RHNA allocation.” (Id. at p. 522.) “Given the RHNA
statutes’ nature, their allowance for public input, and their
lengthy and extensive administrative procedure, it is clear
19
the Legislature intended to eliminate resort to traditional
judicial remedies to challenge a local government’s regional
housing needs allocation so as to avoid the disruption of local
planning that would result from interference through the
litigation process.” (Ibid.)
D. Analysis
1. City of Irvine Controls
Plaintiffs argue that City of Irvine is distinguishable
from their case because they are challenging the preliminary
determination of regional housing needs by the Department
of Housing, not the later allocation of housing by SC
Association of Governments. According to Plaintiffs, City of
Irvine held only that judicial review was precluded as to the
allocation of the regional housing need, not a determination
upon which that allocation is based. We disagree.
In City of Irvine, “the court broadly held that ‘the
statutes governing the RHNA allocation procedure . . .
reflect a clear intent to preclude judicial intervention in the
process’ . . . .” (City of Coronado v. San Diego Association of
Governments (2022) 80 Cal.App.5th 21, 41 (City of
Coronado), citing City of Irvine, supra, 175 Cal.App.4th at p.
522.) In other words, City of Irvine’s reasoning was not
limited solely to analyzing SC Association of Governments’
allocation of the regional housing need to Irvine. City of
Irvine considered the greater RHNA process, and the
Department of Housing’s role and vested authority in it,
concluding that judicial review was precluded.
20
The City of Irvine court’s reasoning applies with equal
force to plaintiffs’ claims here. The Legislature enacted the
RHNA statutes to address California’s shortage of affordable
housing promptly. The intricate and years long
administrative process that leads to the allocation of
regional housing needs “reflects a clear intent on the part of
the Legislature” to restrict judicial intervention. (City of
Irvine, supra, 175 Cal.App.4th at p. 517.) The process
involves the setting of statewide housing goals and
interaction among the Department of Housing, a regional
council of governments, local governments, and concerned
parties. It provides opportunities for extensive input and
consideration of objections, and no “single entity has
complete control of the scheme.” (Id. at p. 520.) To the
extent that the RHNA statutes authorize the Department of
Housing to act in multiple capacities, a single administrative
agency may legally combine investigative, prosecutorial, and
adjudicative functions. (Ibid., citing Morongo Band of
Mission Indians v. State Water Resources Control Bd. (2009)
45 Cal.4th 731, 737.)
Allowing judicial review of the Department of
Housing’s RHNA determination “would interfere with the
administrative process and be both unmanageable and cause
unreasonable delay.” (See City of Coronado, supra,
80 Cal.App.5th at p. 44.) Because plaintiffs challenge the
RHNA determination for the entire SC Association of
Governments region, their action “would require the joining
of all affected local jurisdictions in the lawsuit,” preventing
21
all the municipalities within the region from completing
their housing element revisions. (See City of Irvine, supra,
175 Cal.App.4th at p. 518.) Plaintiffs’ case would
“‘essentially bottleneck the process and create gridlock while
a particular city’s case winds through the courts.’”5 (Ibid.)
City of Coronado, supra, 80 Cal.App.5th 21, supports
this conclusion. In City of Coronado, which was decided
after the trial court entered its judgment in this matter, the
Cities of Coronado, Imperial Beach, Lemon Grove, and
Solana Beach (collectively “the Cities”) filed a combined
petition for writ of administrate mandate and complaint for
injunctive and declaratory relief against the San Diego
Association of Governments, which is the council of
governments for the San Diego region, and its board of
directors (collectively, SD Association of Governments).
(Id. at p. 27, fn. 2.) The Cities alleged that SD Association of
Governments abused its discretion and failed to provide a
fair and impartial hearing in ruling on the Cities’
administrative appeals of the draft RHNA allocations.
(Id. at p. 28.) The Cities sought an order rescinding SD
Association of Governments’ denial of the Cities’ appeals and
the final RHNA allocation. (Id. at p. 30.) After SD
Association of Governments demurred to the petition, the
trial court ruled that it lacked jurisdiction and sustained the
5 As alleged in the first amended petition, the Department of
Housing provided its final RHNA determination to SC Association of
Governments for its region on October 15, 2019. The relief plaintiffs
seek, therefore, would restart a process that was completed nearly four
years ago.
22
demurrer without leave to amend. (Id. at p. 34.) The Cities
appealed, arguing their action was not barred by City of
Irvine because that case involved a substantive challenge,
while their action involved a procedural challenge. (Id. at
pp. 27–28, 41.)
However, the City of Coronado court recognized that
City of Irvine broadly held that the statutes governing the
RHNA allocation procedure reflect a clear intent to preclude
judicial intervention, and there was no suggestion that
procedural claims were outside the scope of its clear holding.
(City of Coronado, supra, 80 Cal.App.5th at p. 41.) Even if
procedural claims were not considered in City of Irvine, the
court’s rationale for precluding judicial review would still
apply and bar the Cities’ action. (City of Coronado, supra,
80 Cal.App.5th at p. 42.) The ultimate relief the Cities
requested was to recalculate the RHNA allocation, and “the
City of Irvine court has already concluded that a judicial
challenge that seeks an alternative RHNA allocation is
barred.” (Id. at p. 42, fn. omitted.) As such, all the
rationales identified in City of Irvine supported the
conclusion that the trial court lacked jurisdiction to
adjudicate the Cities’ claims. (Id. at p. 44.)
Similarly here, the first amended petition asks the trial
court to vacate and set aside the Department of Housing’s
RHNA determination for the SC Association of Governments
region, change the input of information used in the
Department of Housing’s RHNA determination, and conduct
a new assessment for the region. This relief would
23
ultimately result in the RHNA allocations for the entire
region being changed, and “the City of Irvine court has
already concluded that a judicial challenge that seeks
an alternative RHNA allocation is barred.” (City of
Coronado, supra, 80 Cal.App.5th at p. 42, italics in original.)
Concluding that judicial review of the Department of
Housing’s RHNA determination is appropriate here would
essentially render City of Irvine’s and City of Coronado’s
holdings meaningless, as a local government could challenge
the entire RHNA allocation process by challenging the
Department of Housing’s initial RHNA determination. We
will not construe City of Irvine “in a manner that is
inconsistent with its reasoning and would evade the
legislatively imposed limits on judicial review that the court
sought to enforce.” (City of Coronado, supra, 80 Cal.App.5th
at p. 44.) This would cause delay in the entire region and
preclude each local government from completing its housing
element.
2. The Legislature’s Intent to Remove Judicial
Review
a. 2004 Amendments Indicate Judicial Review
is Precluded
Plaintiffs argue that the 2004 amendments to the
RHNA statutes indicate that there was no legislative intent
to eliminate judicial review of the Department of Housing’s
determination of regional housing needs. According to
plaintiffs, the deletion of judicial review from the RHNA
24
statutes applies to a council of governments’ allocation of the
regional housing need, not the Department of Housing’s
RHNA determination. Plaintiffs’ arguments are
unpersuasive.
Before the amendments to the RHNA statutes, “former
section 65584, subdivision (c)(4) declared, ‘The
determination of the council of governments [concerning a
city or county’s share of the state housing need] . . . shall be
subject to judicial review pursuant to Section 1094.5 of the
Code of Civil Procedure.’ This provision was eliminated in
2004.” (City of Irvine, supra, 175 Cal.App.4th at p. 521.)
“We must presume the Legislature’s deletion of the express
provision allowing review by administrative mandamus
reflects its intent to preclude that judicial remedy to
challenge a municipality's RHNA allocation under the
revised law.” (Id. at p. 522; see also City of Coronado, supra,
80 Cal.App.5th at p. 43 [“we see nothing in either the
Legislative amendment or in the City of Irvine court’s
discussion of that amendment that limits its impact to . . .
‘substantive’ challenges to RHNA allocations”].)
As the Department of Housing asserts, the Legislature
deleted the sole provision that authorized judicial review of
the RHNA allocation process. It would not follow that the
deletion of the only provision providing for judicial review
meant that the Legislature intended to provide judicial
review for all other preliminary steps in the RHNA process,
including the Department of Housing’s RHNA
determination. If allowing judicial review of a council of
25
governments’ allocation of regional housing needs would
“effectively nullify” the RHNA statutory process, so too
would allowing judicial review of every step of the process
leading up to the allocation. (City of Irvine, supra, 175
Cal.App.4th at p. 518.)
Moreover, the Legislature “is deemed to be aware of
existing laws and judicial constructions in effect at the time
legislation is enacted.” (People v. Weidert (1985) 39 Cal.3d
836, 844.) If the Legislature desired to provide for judicial
review of the Department of Housing’s determination of
regional housing needs following the 2004 amendments, it
knew how to craft such a provision because it had previously
provided for judicial review in former section 65584,
subdivision (c)(4). (Bernard v. Foley (2006) 39 Cal.4th 794,
811.) The Legislature’s decision to omit judicial review from
any subsequent amendments is another confirmation of its
clear intent to restrict judicial review of the RHNA allocation
process.
A contrary finding would not serve the Legislature’s
intent or purpose. The Legislature declared housing
availability to be of “vital statewide importance” and the
“early attainment of decent housing and a suitable living
environment . . . a priority of the highest order.” (§ 65580,
subd. (a), italics added.) Allowing any of the many local
governments in the SC Association of Governments region to
challenge the Department of Housing’s RHNA determination
would be contrary to the purpose of the RHNA statutes and
render the 2004 amendments meaningless.
26
(Manufacturers Life Ins. Co. v. Superior Court (1995)
10 Cal.4th 257, 274 [“Well-established canons of statutory
construction preclude a construction which renders a part of
a statute meaningless or inoperative”].)
b. Cases Involving Other Statutory Schemes
are Inapposite
In support of their argument that there is no clear
legislative intent to remove judicial review of Department of
Housing’s RHNA determination from the courts, plaintiffs
cite to International Assn. of Fire Fighters, Local 188, AFL-
CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th
259 (International Fire Fighters) and Sims v. Department of
Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059(Sims). These cases, however, addressed different statutory
schemes, not whether judicial review of the RHNA allocation
process is precluded under the present circumstances.
In International Fire Fighters, the California Supreme
Court considered whether a union could obtain judicial
review of a Public Employment Relations Board (Board)
decision refusing to issue a complaint against a city for
failing to meet and confer with the union about layoffs.
(International Fire Fighters, supra, 51 Cal.4th at pp. 264,
267-271.) The union alleged that the city’s failure to meet
and confer violated California’s Meyers-Milias-Brown Act.
Section 3509.5 of this Act generally provides for judicial
review of a final Board decision in an unfair labor practice
case, “except a decision of the [B]oard not to issue a
27
complaint in such a case . . . .” The Supreme Court held
judicial review of the Board’s decision was appropriate
because section 3509.5 did not expressly provide or clearly
indicate that judicial review was prohibited in all
circumstances under the Meyers-Milias-Brown Act.
(International Fire Fighters, supra, at pp. 268, 271.) In
particular, the Meyers-Milias-Brown Act did not expressly
bar traditional mandamus review under three limited
circumstances in which such review was available under the
National Labor Relations Act, upon which the Meyers-
Milias-Brown Act was modeled. The court emphasized, “We
stress, however, that it remains true that a refusal by PERB
to issue a complaint under the MMBA is not subject to
judicial review for ordinary error, including insufficiency of
the evidence to support the agency’s factual findings and
misapplication of the law to the facts, or for abuse of
discretion. Also, to avoid undue interference with the
discretion that the Legislature has intended PERB to
exercise, courts must narrowly construe and cautiously
apply the exceptions we here recognize.”6 (International
Assn. of Fire Fighters, supra, at 271.)
6 While plaintiffs argue in their briefs that the Department of
Housing’s actions exceeded its authority or were based on an erroneous
statutory construction, the first amended petition alleges only that the
Department of Housing should have used different data or a different
approach for its methodology than what it chose. This would amount
to a claimed error in application of the law to the facts or abuse of
discretion, which would not be reviewable under the narrow exceptions
identified in International Fire Fighters were they applicable here.
28
In Sims, the issue was whether regulations
promulgated by the California Department of Corrections
and Rehabilitation (Department of Corrections) regarding
the way the death penalty is carried out substantially
complied with the California Administrative Procedure Act.
(Sims, supra, 216 Cal.App.4th at p. 1063.) In part, the
Department of Corrections argued that the trial court lacked
authority to determine whether the subject proposed
regulations complied with the “necessity” and “clarity”
requirements of the Administrative Procedure Act because
the issue was committed solely to the Office of
Administrative Law. (Id. at p. 1075.) However, the court
found the Legislature unambiguously indicated the opposite
intent. (Id. at 1077.) Section 11350, subdivision (a), under
which the regulations were challenged, provides that “[a]ny
interested person may obtain a judicial declaration as to the
validity of any regulation . . . by bringing an action for
declaratory relief in the superior court in accordance with
the Code of Civil Procedure.” Thus, “[t]he text of the
[Administrative Procedure Act] . . . makes clear that initial
review of a proposed regulation by the [Office of
Administrative Law] is not exclusive but subordinate to
judicial review.” (Sims, supra, at pp. 1077–1078.)
International Fire Fighters and Sims are inapposite.7
We note that they concerned fire fighters being laid off from
7 After the Department of Housing and SC Association of
Governments argued in their responding briefs that International Fire
(Fn. is continued on the next page.)
29
their jobs and inmates’ facing punishment by death. This
case involves governmental entities’ challenges to the
administration of a program, something in which the entities
have “‘no vested, individual rights.’” (City of Irvine, supra,
175 Cal.App.4th at p. 519, quoting Tri–County Special Educ.
Local Plan Area v. County of Tuolumne, supra, 123
Cal.App.4th at p. 578.) Furthermore, International Fire
Fighters and Sims involved circumstances and statutes, the
Meyers-Milias-Brown Act and the California Administrative
Procedure Act, not at issue here. Plaintiffs do not establish
that the Meyers-Milias-Brown Act and the California
Administrative Procedure Act are analogous or comparable
to the RHNA statutory scheme. Thus, International Fire
Fighters and Sims fail to provide authority to support the
assertion that the judicial review is available under the
RHNA statutes. (People v. Knoller (2007) 41 Cal.4th 139,
154–155 [“‘It is axiomatic that language in a judicial opinion
is to be understood in accordance with the facts and issues
before the court. An opinion is not authority for propositions
not considered’”])8
Based on the foregoing, the trial court was correct that
the RHNA statutes reflect a clear intent to preclude judicial
intervention in the process under the facts presented, and
Fighters and Sims involved inapposite statutory schemes, plaintiffs
failed to address the arguments in their reply brief.
8 We need not address the Legislature’s ability to limit the court’s
jurisdiction under other circumstances and acts.
30
the trial court properly sustained the demurrers to plaintiffs’
first amended petition.
DISPOSITION
The judgment is affirmed. The Department of Housing
and SC Association of Governments are to recover costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
31