In November, voters in Eureka will decide whether to scrap a housing development plan that was approved by California housing regulators in 2020 — and, in the process, risk thumbing their noses at Sacramento.

City planners in the Humboldt County town have spent years figuring out how to lay the ground for nearly 1,000 new units by the end of the decade, a quota they’ve been assigned by California’s Housing and Community Development Department. A key pillar of the city’s plan is to convert a dozen of the city’s public parking lots into affordable housing projects.

That big idea triggered a local political firestorm over the proposed housing, the loss of parking and the very future of Eureka. Hence the November ballot measure, which would slap costly new parking requirements on those proposed lot-to-home conversion projects and direct development to an abandoned middle school on the far end of town.

The fight over Eureka’s parking lots is distinctly Eureka in many of its details, but the broad contours of the story are familiar. Over the last half decade, state lawmakers have passed dozens of new laws requiring local elected officials to approve more housing, whether they want to or not. Regulators and the state’s Department of Justice have grown increasingly unyielding. Lawsuits in Huntington Beach and La Cañada Flintridge and legal settlements in Fullerton and Coronado speak to the new regulatory reality.

What makes the housing kerfuffle in Eureka unusual is that it’s not local elected leaders who are contesting state regulations. In November, it could be the voters themselves who give the state-sanctioned plan the boot.

If they do, that could put the city in unsettled legal waters. As more state-imposed housing deadlines creep up, other California cities may soon find themselves similarly adrift.

Mixed messaging from the courts

For decades, California slow-growth advocates have used the citizen initiative process to hold back the tide of unwelcome development. An analysis published by a Bay Area think tank and development advocacy organization, SPUR, identified 208 successful local initiatives that restricted housing construction between 1973 and 2023.

Eureka occupies a special place in that history. In 1949, city officials voted to use federal funding to build “low-rent” housing reserved for veterans. The local backlash spawned a statewide campaign that ultimately added Article 34 to the state constitution, a provision that gives local voters veto power over new public housing projects. Seventy five years later, housing advocates still haven’t managed to expunge that provision from state law.

But the political sway of the anti-development voting bloc may have started to wane. Since 2022, majorities in Menlo Park, Laguna Beach, Santa Cruz, Costa Mesa and Nevada City have either rejected anti-development measures or passed initiatives to roll back prior ones.

If Eureka voters buck that recent trend and turn out to preserve the parking lots, recent judicial precedent doesn’t offer a clear view of what might happen.

Judges have ruled that when local restrictions — even those passed by popular vote — make it impossible to abide by state housing requirements, the state laws tend to win out. But in cases where local restrictions don’t make it impossible, but simply more costly or more complicated, for cities to follow state decrees, guidance from the courts has been inconsistent.

Encinitas, in San Diego County, has been ground zero of this judicial confusion. The city has a law on the books requiring voter approval of any major change to housing and land use policy. When in 2016 the city put its state-mandated housing development plan up for the electorate’s approval, the voters rejected it. The city tried again in 2018 and again, voters refused to cooperate.

Finally, a local judge stepped in, writing that “the Court is required to find a way out of the impasse” and let the plan go forward over the electorate’s objections. But when the city itself turned back to the court, asking it for permission to ignore the electorate for all future housing plans too, another judge refused. The first ruling, which suspended the voters’ referendum power, was evidently only a one-off — and only after the voters had given the “wrong” answer multiple times.

The politics of saying no

Such legal ambiguity has put some cities in the tough position of having to choose which law to follow and which to break.

In 2021, the city of Alameda, caught between a state requirement to permit more housing and a local ballot initiative, reaffirmed by voters in 2020, that effectively banned the construction of any apartment buildings on the island, simply decided to ignore the will of the electorate.

That conundrum is likely to crop up for cities across the state. Sausalito, across the bay from San Francisco, may have to reconsider a voter-enacted waterside development ordinance if it wants to permit construction in some of the places it told the state that it would.

And in Orange County’s Yorba Linda, where voters rejected a measure to rezone many of the parcels identified by the city as suitable for development in its housing plan, city officials are trying again, while working toward and praying for a more amenable outcome.

“The City is in the process of presenting a revised Housing Element proposal to the voters in November 2024,” said Yorba Linda spokesperson, Geoff Spencer, in an email. “This revised proposal was developed with the help of a resident working group that included residents from across Yorba Linda to come together to create a plan that their neighbors could all get behind and support.”

Elizabeth Hansburg, a pro-housing development advocate in Orange County, said Yorba Linda’s approach gives too much deference to local voters who don’t want added density in their neighborhoods.

“The city council, the planning commission, the city manager, the planning department, their actions are all bound by the courts,” she said. “But you can just get one random dude or a collection of NIMBYs with enough money to create a ballot proposition that really wreaks havoc on the whole process.”

A major change in the political dynamic over the last decade: Anti-development ballot measure writers aren’t just contending against local opponents anymore.

“You can just get one random dude or a collection of NIMBYs with enough money to create a ballot proposition that really wreaks havoc on the whole process.”
— Elizabeth Hansburg, pro-housing development advocate in Orange County

The administrations of Gov. Gavin Newsom and Attorney General Rob Bonta have proven themselves more willing than their predecessors to penalize cities that don’t comply with the letter of state housing law. In February, Bonta’s office entered a brief with Humboldt County Superior Court to defend Eureka’s housing plan against one of a handful of lawsuits filed by many of the same proponents of the local ballot measure. “The City is actively fulfilling state policies to facilitate much-needed housing development in precisely the areas those policies encourage to reduce environmental harm and improve livability for all Californians,” the brief reads.

With California’s top law enforcement officer on their side, opponents of the Eureka measure now have fearsome and newly credible consequences to wave before undecided voters: State litigation, funding cuts and the dreaded “builder’s remedy,” a state law that allows developers to essentially ignore local zoning restrictions in cities and counties that don’t have state-approved housing plans.

So far this year, the Housing and Community Development Department has decertified housing plans in two cities, both in the San Francisco Bay Area: Portola Valley and Saint Helena.

“The interesting question is whether the existence of the Builder’s Remedy and HCD’s willingness to decertify housing elements…changes the politics of voting for this thing,” said Chris Elmendorf, a UC Davis law professor.

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