Lawsuit alleges Newport Beach City Council’s approval of housing-element-related law violates city charter

A lawsuit filed against Newport Beach last week alleges the City Council violated its charter when it approved ordinances and resolutions necessary for the implementation of the city’s housing element instead of letting voters weigh in on them in the November election.

The suit was filed by local nonprofit Still Protecting Our Newport on Aug. 8. The group argues the council’s decision to skip a ballot initiative and move forward with the zoning updates at its July 23 meeting was prohibited by section 423 of the city charter. The “Greenlight” section was passed in 2000 and requires voter approval of any land use decisions with the potential to significantly increase development in Newport Beach, unless “state or federal law precludes a vote of the voters,” as cited in the charter.

SPON claims the city made numerous “promises and representations” indicating residents would get a chance to vote on a raft of measures associated with the housing elemen but “abruptly reversed course.” The group is suing to void the City Council’s approval of the updates and amendments and asking the Superior Court of Orange County to issue a declaration affirming that the council cannot bypass section 423.

“The City Council asserts, without support, that the right to vote by local residents under Section 423 is preempted by the housing mandates adopted by the state Legislature,” attorneys for SPON wrote in the suit. “That is not the law and the city knows it.”

Newport Beach is under state mandate to zone for an additional 4,845 residential units by the 2029 end of the current Regional Housing Needs Assessment (RHNA) cycle. If it fails to do that, the city could be subject to hundreds of thousands of dollars in fines each month and the use of the “builder’s remedy,” a provision in the Housing Accountability Act that lets developers ignore zoning laws in municipalities that aren’t in compliance with state housing laws.

Members of the City Council have noted that earlier versions of Newport Beach’s housing element had been rejected numerous times, and it took years to put together one the California Department of Housing and Community Development would be willing certify. City officials say scrapping the current plan and starting over now would lead the city to fall out of compliance, opening the door for state authorities to take control of local zoning.

“The authors of Section 423 contemplated that the city could be forced to implement state law and specifically provided that a vote is not required if it is precluded by state housing mandates,” city officials wrote in a statement. “That is exactly the situation here: The state has mandated that the city provide for housing, and if the city doesn’t comply with the state mandate, the state can force implementation.”

The current housing element calls for the creation of 8,174 housing units, about 68% more than what the RHNA requires. Supporters say that buffer is necessary to account for the challenges in developing low and very-low income housing in Newport Beach’s coastal property market. Critics say more could be done to fund and encourage such development in order to reduce the total number of new units the city has to zone for.