An appellate judge recently struck down the City of Redondo Beach’s housing element, ruling that the city’s use of residential overlay zones on sites that allow 100% non-residential projects is invalid. Essentially, cities cannot claim sites will be used for low-income housing in areas that allow projects with no housing at all. 

Jurisdictions in San Mateo County, most notably Menlo Park, Brisbane, and the County itself, may no longer have valid housing elements per this ruling. 

These jurisdictions sought to satisfy their state housing requirements, the Regional Housing Needs Allocation (RHNA), through the use of zoning “overlays,” rules that permit residential development but keep underlying zoning that permits other uses. These overlays allowed housing in theory but also allowed other development, often on sites that had a very low likelihood of redeveloping over the course of the RHNA cycle, between 2023 and 2030. 

Redondo Beach’s case shows the ways cities risk falling out of compliance with state law when they approach housing element compliance conservatively. The state Department of Housing and Community Development (HCD), which oversees housing element compliance, allowed cities to use overlay districts for its RHNA after it faced strong pressure from cities to permit such practices. But just because HCD bows to pressure from cities does not mean those practices will hold up in court. 

Cities can somewhat easily amend their housing elements to avoid being subject to the Builder’s Remedy by amending their zoning codes to require residential development on housing element sites. Though Redondo Beach plans to appeal the case to the state Supreme Court, the Court has been deferential to appellate judges in most housing element cases. Without zoning amendments, cities risk becoming subject to the Builder’s Remedy, allowing higher densities than local zoning allows. 

Contrary to many cities’ oft-repeated opinions about housing elements, the court emphasized that obeying the law requires creating realistic pathways to development as opposed to theoretical planning or “paper compliance.” Housing elements are no longer just about creating theoretical capacity for housing, they are about creating realistic plans that deliver results. Most cities in the County, falling farther and farther behind on meeting their housing goals, may need to pursue greater rezonings, permit streamlining, and other strategies to ensure they make housing feasible to build.