Orange County municipal leaders plan to discuss this week the possibility of taking a fight over state-mandated homebuilding goals to the California Supreme Court.

The attorney for the Orange County Council of Governments, Fred Galante, said the body will discuss the possibility of taking the matter to the state’s high court during a closed session next Thursday, Aug. 24.

At issue is a Fourth District Court of Appeals ruling last month. The July 27 opinion tossed out a lawsuit challenging a state requirement that Southern California plan for the construction of 1.34 million new homes by the end of the decade.

Orange County cities sued the state Department of Housing and Community Development in 2021, arguing the state agency grossly overestimated the number of new residences Southern California must plan for by 2030. The lawsuit said the correct number should be about 651,000 new housing units.

Six Los Angeles County cities later joined the lawsuit. But a superior court judge dismissed the case later that year.

In its July 27 opinion, the appeals court upheld the November 2021 superior court ruling, saying state amendments to the housing needs assessment law banned municipalities from challenging allocations in court. A 2009 ruling in a case involving the city of Irvine upheld that amendment, saying that lawmakers essentially made state and regional officials the “final judge, jury and appellate tribunal” for housing allocations.

Appellate justices wrote that “the Legislature clearly intended to eliminate judicial remedies for challenging a municipality’s (state housing) allocation.” The Regional Housing Needs Assessment process is “immune from judicial intervention,” they ruled.

UC Davis Law professor Chris Elmendorf, an expert in the Regional Housing Needs Assessment (or RHNA) process, said he wasn’t surprised by the appellate court ruling.

“There’s no way for that system to work with those timelines if RHNA determinations are subject to judicial review,” Elmendorf said.

Elmendorf said it’s legal for the Legislature to prohibit courts from reviewing housing allocations because “this doesn’t involve individual rights,” which tend to require judicial review. This case, he said, is about planning obligations for local governments, “which themselves are creatures of the state.”

Galante, the OCCOG attorney, disagreed.

“Our argument all along has been there’s nothing in the statute that says you can’t sue,” he said.

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