The opinion
Filed 6/20/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF CORONADO et al., D079013
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2020-
00033974-CU-MC-CTL)
SAN DIEGO ASSOCIATION OF
GOVERNMENTS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E.L. Strauss, Judge. Affirmed.
Sloan Sakai Yeung & Wong, Madeline E. Miller, Nancy C. Miller and
Christopher W. Moores for Plaintiffs and Appellants.
Meyers Nave, Deborah J. Fox, Amrit S. Kulkarni and Margaret W.
Rosequist for Defendants and Respondents.
Miller Starr Regalia and Kenneth A. Stahl for Yimby Law as amicus
curiae on behalf of Defendants and Respondents.
I.
INTRODUCTION
“The Legislature enacted the regional housing needs assessment
(RHNA) procedure . . . to address the state’s shortage of affordable housing.”
(San Franciscans for Livable Neighborhoods v. City and County of San
Francisco (2018) 26 Cal.App.5th 596, 610.) As a component of this process,
“[v]arious regional councils of governments, in conjunction with the cities and
counties within their jurisdictions and the California Department of Housing
and Community Development (HCD), devise methods for distributing
existing and projected housing needs within their regions and for allocating a
share of the regional housing needs to each local jurisdiction.” (Ibid.)
In City of Irvine v. Southern California Assn. of Governments (2009)
175 Cal.App.4th 506 (City of Irvine), the Court of Appeal concluded that “the
administrative procedure established under Government Code section
65584[ 1] et seq. . . . to calculate a local government’s allocation of the regional
housing needs assessment (RHNA) is intended to be the exclusive remedy for
the municipality to challenge that determination and thereby preclude[s]
judicial review of the decision.” (Id. at p. 510.) Among other reasons
supporting this conclusion, the City of Irvine court noted that in 2004, the
Legislature “eliminated” a statutory provision authorizing judicial review of
RHNA allocations. (Id. at p. 521.) The City of Irvine 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.)
1 Unless otherwise specified, all subsequent statutory references are to
the Government Code.
2
In this action, the City of Coronado, City of Imperial Beach, City of
Lemon Grove, and City of Solana Beach (collectively “the Cities”) filed a
combined petition for writ of administrate mandate (Code Civ. Proc.,
§ 1094.5) and complaint for injunctive and declaratory relief (petition /
complaint) against the San Diego Association of Governments and its board
of directors (The Board) (collectively SANDAG). 2 In their petition /
complaint, the Cities maintained that SANDAG denied them a fair hearing
when deciding the Cities’ administrative appeals of SANDAG’s RHNA
allocations, for two reasons. First, the Cities alleged that SANDAG unfairly
used a “weighted vote” procedure in which member jurisdictions cast votes
based on their respective populations rather than a “tally vote” in which each
member jurisdiction has a single, evenly-weighted vote. 3 The Cities claimed
that in ruling on the Cities’ administrative appeals, SANDAG had acted in a
“quasi-judicial capacity” and that the use of weighted voting in this context
“violate[s] fundamental tenets of procedural due process, fairness, equity.”
The Cities further alleged that certain members of the Board were biased
against the Cities and that their decision to deny the Cities’ administrative
appeals was “predetermined,” thereby “rendering the decision on the
[a]ppeals invalid.” In their prayer for relief, the Cities requested that the
trial court enter a judgment “rescind[ing],” the “Final RHNA allocation.”
2 According to the petition / complaint, SANDAG is “the council of
governments designated by . . . section 65584.04 to carry out the methodology
and allocation of regional housing needs required by that section . . . .” The
Board is comprised of representatives of its nineteen-member local
governments in the San Diego region.
3 The Cities explained that “SANDAG . . . utilized a weighted vote under
Public Utilities Code section 132351.2, which allocates the weighted vote
among its member jurisdictions based on population.”
3
SANDAG filed a demurrer. In a brief supporting its demurrer,
SANDAG argued that the trial court lacked jurisdiction over the action for
the reasons stated in City of Irvine. The trial court agreed with SANDAG,
stating that the City of Irvine court concluded that the “Legislature
specifically eliminated judicial review of the RHNA allocation,” and that “the
same analysis applies to bar [the Cities’] claims for judicial relief.”
Accordingly, the court sustained SANDAG’s demurrer without leave to
amend, and entered judgment in its favor.
On appeal, the Cities contend that the trial court erred in concluding
that City of Irvine precludes their action. The Cities argue that City of Irvine
involved a substantive challenge to the municipality’s RHNA allocation and
does not bar their “procedural challenge,” and that they are entitled to
judicial redress to remedy SANDAG’s use of a purportedly unfair process to
decide their administrative appeals of SANDAG’s RHNA allocations. The
Cities also contend that their action should not be barred merely because, if
they were to prevail, the “ ‘end result’ ” would be the “rescission of the
[RHNA] housing allocation.” The Cities also argue that the Legislature’s
2004 deletion of the prior provision authorizing judicial review of an RHNA
allocation is “not determinative” (boldface & capitalization omitted) as to the
court’s jurisdiction to entertain the Cities’ challenge to the fairness of the
RHNA process in this case.
We are not persuaded by any of the Cities’ attempts to distinguish City
of Irvine. For reasons that we explain in part III, post, we hold that City of
Irvine is controlling and bars the Cities’ action. Accordingly, we conclude
4
that the trial court properly sustained SANDAG’s demurrer without leave to
amend and we affirm the judgment. 4
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Cities’ petition / complaint
The Cities filed their petition / complaint against SANDAG in
September 2020. In their petition / complaint, the Cities alleged that
SANDAG abused its discretion and failed to provide a fair hearing in ruling
on the Cities’ administrative appeals of SANDAG’s draft RHNA allocations
(§ 65584.05).
1. The Cities’ summary of their action
The Cities summarized their action as follows:
“This action arise from SANDAG’s abuse of discretion in
carrying out its duties under . . . section 65584.04,
including its failure to provide a fair hearing and approval
due to its utilization of weighted voting under Public
Utilities Code section 132351.2[ 5] in a quasi-judicial
proceeding.
“[The Cities] also did not receive a fair hearing because
certain members of [the Board] were biased against [the
Cities]. The[ ] . . . decision [of the members of the Board] to
deny the appeals was predetermined. Therefore, [the
4 In light of our conclusion, we need not consider SANDAG’s alternative
ground for affirmance, i.e., that none of the causes of action in the Cities’
petition / complaint states a legally viable claim. Accordingly, we express no
opinion on the legal viability of any of the claims in the Cities’ petition /
complaint.
5 As alluded to in footnote 3, ante, Public Utilities Code section 132351.2
outlines an “apportionment formula,” (id., subd. (c)) to allocate votes among
the member jurisdictions that have a seat on SANDAG’s Board of Directors
based upon the population of each jurisdiction.
5
Cities] did not receive a fair hearing on the [a]ppeals
because these [members of the Board] did not act as
neutral and impartial decisionmakers.
“. . . The [f]inal RHNA [a]llocation was preceded by and
predicated upon these prejudicial abuses of discretion.
Because the weighted vote on the [a]ppeals was improper
and the [Cities] were not afforded neutral and impartial
decisionmakers, the [c]ourt should order: (1) that the
[f]inal RHNA [a]llocation approval by SANDAG be
rescinded, (2) that SANDAG’s denial of the [a]ppeals be
rescinded, (3) that the [a]ppeals be remanded to SANDAG
[for] its consideration, and (4) that SANDAG be prohibited
from utilizing a weighted vote on the [a]ppeals.”
2. The Cities’ description of the factual and procedural basis
underlying their petition / complaint
In their petition / complaint, the Cities explained that each of the four
cities filed an administrative appeal of SANDAG’s draft RHNA allocation in
January 2020, pursuant to section 65584.05. The Cities outlined the
numerous bases of each of their respective administrative appeals, which
included grounds such as “[l]ack of [l]and [u]se [a]uthority,” and
“[u]nreachable [d]evelopment [e]xpectations.” 6
While the Cities’ administrative appeals were pending, three
jurisdictions 7 submitted objections to SANDAG’s procedures for resolving the
appeals. One of the objections was “that the [a]ppeals were quasi-judicial in
nature and therefore should be decided by a tally vote and not a weighted
vote.” In addition, the Cities submitted a joint letter to SANDAG objecting to
6 The grounds of the Cities’ respective administrative appeals are not
relevant to the present appeal.
7 The petition / complaint does not identify the three jurisdictions.
6
the use of weighted voting to decide their appeals. 8 According to the
petition / complaint, “The letter . . . objected to the use of the weighted vote in
the context of quasi-judicial appeals because the weighted vote would deny
the appealing jurisdictions a fair hearing.”
Notwithstanding these objections, in June of 2020, SANDAG used a
weighted vote to determine the administrative appeals. Based on the
weighted vote, SANDAG rejected all of the appeals except for one
modification to the City of Coronado’s RHNA allocation.
A few weeks after the resolution of the administrative appeals,
SANDAG approved the final RHNA allocation, again based on a weighted
vote.
3. The causes of action
The petition / complaint contains three causes of action. In their first
cause of action for a writ of administrative mandate (Code Civ. Proc,
§ 1094.5) the Cities claim that “[b]ecause the weighted vote of the [a]ppeals
was improper, the decision on the [a]ppeals is invalid, which renders the
[f]inal RHNA [a]llocation approval invalid.” In the second cause of action,
also for a writ of administrative mandate (Code Civ. Proc, § 1094.5), the
Cities allege, upon information and belief, that certain members of the Board
were biased against the Cities and that the decision of these members to deny
the Cities’ appeals was improperly “predetermined.” In their third cause of
action for declaratory and injunctive relief, the Cities request a declaration
8 As the Cities explain in their petition / complaint, Public Utilities Code
section 132251.2 authorizes a weighted voting scheme in which votes are
allocated “among [SANDAG’s] member jurisdictions based on population.”
Thus, when a weighted vote is used, the votes of member jurisdictions with
larger populations, such as Chula Vista and the City of San Diego, have
greater voting weight than do the votes of member jurisdictions with smaller
populations such as Coronado and Del Mar.
7
that SANDAG “denied [the Cities] a fair and impartial hearing,” and an
injunction directing SANDAG to conduct “quasi-judicial hearings on RHNA
appeals to the requirement of state law. . . .”
4. The prayer for relief
In their prayer for relief, the Cities request a judgment that includes a
writ of mandate against SANDAG stating that “[t]he [f]inal RHNA allocation
approved by SANDAG on July 10, 2020, is rescinded,” and “SANDAG’s denial
of the [a]ppeals on June 26, 2020, is rescinded.”
B. SANDAG’s demurrer
SANDAG filed a demurrer to all of the causes of action in the Cities’
petition / complaint. SANDAG claimed that each cause of action was barred
for lack of jurisdiction. SANDAG also claimed that each cause of action failed
to state a viable claim as a matter of law.
In a supporting brief, SANDAG argued that the trial court lacked
jurisdiction to consider the Cities’ causes of action. SANDAG explained:
“The Legislature . . . has specifically insulated the RHNA
from . . . litigation attacks, providing that the
administrative process is the exclusive remedy for any
RHNA challenge. See City of Irvine . . . . And there is no
question that this lawsuit is a prohibited attempt to seek
judicial review of the housing allocation as the lawsuit
specifically requests that this Court order rescindment of
the final RHNA allocation approved by HCD and SANDAG.
This effort by a small minority of the cities in the region to
do an end run around the statutory framework, derailing
the ability to address the ongoing critical housing shortage,
must be rejected.
“As the courts have explained, allowing lawsuits such as
this, that demand rescindment of the finalized RHNA
allocation, will cause gridlock and delay, destabilizing and
impeding the region’s ability to move forward with critical
housing needs. See City of Irvine, [supra,] 175 Cal.App.4th
8
506. To guard against such tactics, the . . . Legislature and
courts have determined that the exclusive remedy for
RHNA challenges is the detailed administrative procedure
established under the Government Code which specifically
precludes judicial review. See id. Accordingly, this lawsuit
must be rejected outright for lack of jurisdiction.” 9
SANDAG supported its demurrer with a request for judicial notice,
asking the trial court to take judicial notice of numerous documents,
including those related to SANDAG’s bylaws concerning weighted voting and
the Cities’ administrative appeals of the draft RHNA allocations. SANDAG
also requested that the court take judicial notice of a letter from HCD
indicating its approval of SANDAG’s final RHNA allocation.
C. The Cities’ opposition
The Cities filed an opposition to SANDAG’s demurrer. In their
opposition, the Cities argued that “City of Irvine is [d]istinguishable.”
According to the Cities, the challenge at issue in City of Irvine was one
“aimed at recalculating an allocation,” not one challenging “the
administrative procedure under . . . section 65584.” The Cities maintained
that they “do not seek to set aside the draft allocation,” and that if the trial
court were to “set aside the unfair decision of the [a]ppeals, and they are
9 SANDAG argued in the alternative that the Cities’ complaints failed to
state any viable claim. With respect to the Cities’ claim that the weighted
voting procedure denied them a fair hearing, SANDAG argues that
SANDAG’s use of weighted voting is dictated by state law, namely, Public
Utilities Code, section 132351.2. SANDAG further argued that the Cities’
“conclusory allegations,” that certain Board members had “predetermined”
the outcome of their administrative appeals failed to state a claim because
the statutory scheme mandates that “an administrative appeal . . . be made
to the regional council of governments whose members have been part of the
process from the start and thus will necessarily have some preexisting views
and thoughts on the subject.”
9
reheard by SANDAG, [the Cities] could still end up with the same RHNA
[a]llocation as the previous hearing, but the result would occur after a fair
hearing conducted with a tally vote and without bias.”
The Cities argued further that City of Irvine was predicated “on the
integrity of the administrative process,” and claimed that “nothing in City of
Irvine allows SANDAG to avoid its obligation to provide a fair hearing.” The
Cities also contended that the Legislature’s “deletion of [a] previous provision
allowing for judicial review of a RHNA allocation decision,” was not
dispositive as to the court’s jurisdiction to entertain the Cities’ challenge to
the fairness of the RHNA process in this case. The Cities argued that this
was so because “the court in City of Irvine recognized that the deletion only
served to reinforce its earlier conclusion regarding the lack of judicial review
of a RHNA allocation based upon the lengthy administrative process,” and “in
the absence of a fair hearing process, City of Irvine may have been decided
differently.” 10
D. SANDAG’s reply
SANDAG filed a reply brief in support of its demurrer. SANDAG
reiterated its argument that the trial court lacked jurisdiction to consider the
causes of action in the Cities’ petition / complaint. In support of this
contention, SANDAG argued that “[t]he crux of [the Cities’] lawsuit is their
desire to have this Court vacate the final RHNA allocation plan for the San
Diego region that has already been approved by both SANDAG and HCD.”
SANDAG noted that the Cities’ prayer for relief expressly requests that “the
10 With respect to whether the petition / complaint stated a claim for
relief, the Cities argued that “[w]eighted [v]oting is [u]nlawful for [q]uasi-
[j]udicial proceedings.” The Cities also argued that the “[p]etition [p]roperly
[a]lleges [b]ias.” In support of this argument, the Cites noted that they did
“not have to prove bias at this stage of the proceeding.”
10
Court order ‘that the Final RHNA Allocation approved by SANDAG be
rescinded.’ ” According to SANDAG, the City of Irvine court specifically
concluded that courts lack jurisdiction to provide such relief. (Citing City of
Irvine, supra, 175 Cal.App.4th at pp. 512, 518.)
SANDAG also argued that the Cities’ petition would bring about a
“disruption [of] the RHNA process,” which is precluded by City of Irvine
because “allowing judicial review would delay allocation for an entire region,
[thereby] essentially bottlenecking the process and creating gridlock while a
particular city’s case winds through the courts.” SANDAG further argued
that the Cities’ attempt to “fabricat[e] a distinction,” between the claims at
issue in City of Irvine and those in this case was unavailing because
adjudicating the claims in either case would “caus[e] gridlock and delay in
the statutory program designed to alleviate the statewide critical housing
shortage,” and that this was the primary basis for the City of Irvine court’s
conclusion that the Legislature intended to bar such claims. Finally,
SANDAG argued that, as explained in City of Irvine, the Legislature limited
municipalities’ remedies in challenging an RHNA allocation to those
available in the statutory scheme and specifically eliminated a previous
statutory right to judicial review in 2004. For all of these reasons, SANDAG
argued that the trial court lacked jurisdiction to adjudicate the Cities’
petition / complaint. 11
Together with its reply, SANDAG filed a request for judicial notice
asking the trial court to take judicial notice of orders in two other cases
11 SANDAG also again argued in the alternative that the Cities’ petition /
complaint failed to state a claim. In support of this contention, among other
arguments, SANDAG maintained that its actions on the Cities’ RHNA
appeals were quasi-legislative and thus, the standards for quasi-judicial
hearings relied on by the Cities were inapposite.
11
concerning RHNA allocation challenges, as well as two SANDAG documents
pertaining to the weighted voting distribution for fiscal year 2021.
E. The trial court’s ruling
The trial court entered a tentative ruling sustaining the demurrer on
all of the causes of action in the petition / complaint. The trial court reasoned
in part:
“[T]his court lacks judicial review [sic] of the claims. [The
Cities] characterize the claims as procedural in nature as
opposed to challenging the substance of the RHNA
allocations. However, the end result, if [Cities] were to
prevail, would be to rescind those housing determinations.
Regardless, the holding of City of Irvine[, supra,
175 Cal.App.4th 506] is applicable to the claims alleged.
There, the court held that the Legislature specifically
eliminated judicial review of the RHNA allocation. (Id. at
510, 522.) Similarly, even though the instant facts are an
indirect challenge to the allocations, the same analysis
applies to bar [the Cities’] claims for judicial relief.
“[The Cities] attempt to carve out relief pursuant to
[section] 1094.5 from the holding in City of Irvine.
However, the authority cited within the City of Irvine
opinion supports [SANDAG’s] arguments that no such
carve outs exist under the instant applicable scheme. . . .
Here, the Legislature has already determined the review
process arising from the RHNA allocation[,] which does not
include review under [section] 1094.5. Considering the
scheme as a whole and without affirmative authority such
review is included, the court is not persuaded that such
relief is contemplated or permitted.” 12
In its tentative ruling, the trial court stated that it would “hear from
the parties as to whether leave to amend should be granted.”
12 The trial court also granted all of SANDAG’s requests for judicial
notice. On appeal, the Cities do not challenge the trial court’s ruling on any
of SANDAG’s requests for judicial notice.
12
At a hearing on the demurrer at which counsel for each party presented
argument, the Cities’ counsel stated that if the trial court were to affirm its
tentative ruling, then “we do not think an amendment could fix that
jurisdictional issue.”
At the conclusion of the hearing, the trial court indicated that it would
confirm the tentative ruling and sustain the demurrer. The court added,
“[T]hat’s without leave to amend, because as I understand it there is no
interest in attempting to amend.”
The trial court proceeded to confirm its tentative ruling that the court
lacked jurisdiction over all of Cities’ claims and entered a final order
sustaining SANDAG’s demurrer to all of the causes of action in the petition /
complaint without leave to amend. 13
F. The judgment
The trial court entered a judgment in April 2021 dismissing the Cities’
petition for writ of mandate and complaint for declaratory and injunctive
relief “based on lack of jurisdiction.”
G. The Cities’ appeal
Cities timely filed an appeal from the judgment. 14
13 In its final order, the trial court noted that Cities’ counsel
acknowledged at the hearing on the demurrer that, “if the [trial court]
affirmed its [t]entative [r]uling there was no amendment that could cure the
[trial court’s] finding that it lacked jurisdiction . . . .”
14 While this appeal was pending, we granted an unopposed application of
YIMBY Law to file an amicus curiae brief in support of SANDAG. According
to its application, YIMBY Law “is a 501(c)(3) charitable non-profit
organization with a significant interest in ensuring that cities meet their
RHNA obligations.” We have considered the YIMBY Law amicus curiae brief
and the Cities’ answer to that brief in our resolution of this appeal.
13
III.
DISCUSSION
The trial court properly sustained SANDAG’s demurrer without
leave to amend on the ground that judicial review of SANDAG’s
RHNA allocation is not permitted
The Cities contend that the trial court erred in sustaining SANDAG’s
demurrer without leave to amend. The Cities maintain that the trial court
erred in concluding that judicial review of SANDAG’s RHNA allocation is not
permitted. Specifically, they maintain that the rationale of City of Irvine
does not apply in this case and that the trial court erred in applying that
decision to conclude that the Cities’ action is barred.
A. Standard of review
In All of US or None–Riverside Chapter v. Hamrick (2021)
64 Cal.App.5th 751, this court restated the following well-established law
governing the review of an order sustaining a demurrer without leave to
amend:
“ ‘A demurrer tests the legal sufficiency of the complaint.
We review the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action. For
purposes of review, we accept as true all material facts
alleged in the complaint, but not contentions, deductions or
conclusions of fact or law. We also consider matters that
may be judicially noticed. [Citation.] When a demurrer is
sustained without 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.” [Citation.] Plaintiff
has the burden to show a reasonable possibility the
complaint can be amended to state a cause of action.’ ” (Id.
at p. 763, quoting Hamilton v. Greenwich Investors XXVI,
LLC (2011) 195 Cal.App.4th 1602, 1608–1609.)
14
B. Governing law
1. The statutory scheme
a. The housing element of a local government’s general plan
“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.)
“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
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.)
b. HCD’s development of a regional housing need allocation
“[S]ection 65584, subdivision (b) requires HCD, ‘in consultation with
each council of governments,’ . . . to ‘determine [a] region’s existing and
projected housing need pursuant to [s]ection 65584.01.’ ” (City of Irvine,
supra, 175 Cal.App.4th at pp. 513–514.)
15
c. The development of a methodology for allocating the regional
housing need among local jurisdictions within a region
Section 65584.04 provides that a council of governments shall then
“develop, in consultation [with HCD], 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).) Upon the completion of the methodology development process,
“the council of governments . . . shall provide notice of the adoption of the
methodology to the jurisdictions within the region, . . . .” (§ 65584.04,
subd. (k).)
d. The RHNA draft allocation
“After adopting a methodology, the next step involved the preparation
and revision of a draft allocation plan for the regional housing need
assessment [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.)
e. The RHNA draft allocation administrative appeals process
Section 65584.05 authorizes local governments to file an administrative
appeal of the RHNA draft allocation and outlines the procedures for such
appeals in relevant part as follows:
“(b) Within 45 days following receipt of the draft allocation,
a local government within the region . . . may appeal to the
council of governments . . . for a revision of the share of the
regional housing need proposed to be allocated to one or
more local governments. . . .
16
“[¶] . . . [¶]
“(c) At the close of the period for filing appeals pursuant to
subdivision (b), the council of governments . . . shall notify
all other local governments within the region . . . and
[HCD] of all appeals and shall make all materials
submitted in support of each appeal available on a publicly
available internet website. Local governments and [HCD]
may, within 45 days, comment on one or more appeals. If
no appeals are filed, the draft allocation shall be issued as
the proposed final allocation plan pursuant to paragraph
(2) of subdivision (e).
“(d) No later than 30 days after the close of the comment
period, and after providing all local governments within the
region . . . at least 21 days prior notice, the council of
governments . . . shall conduct one public hearing to
consider all appeals filed pursuant to subdivision (b) and all
comments received pursuant to subdivision (c).
“(e) No later than 45 days after the public hearing pursuant
to subdivision (d), the council of governments . . . shall do
both of the following:
“(1) Make a final determination that either accepts,
rejects, or modifies each appeal for a revised share filed
pursuant to subdivision (b). Final determinations shall
be based upon the information and methodology
described in Section 65584.04 and whether the revision
is necessary to further the objectives listed in
subdivision (d) of Section 65584.[ 15] The final
determination shall be in writing and shall include
written findings as to how the determination is
consistent with this article. The final determination on
an appeal may require the council of governments . . . to
adjust the share of the regional housing need allocated
15 Section 65584, subdivision (d) outlines various objectives of a regional
housing needs allocation plan, including those related to affordability,
environmental protection, access to jobs, and residential economic
integration.
17
to one or more local governments that are not the
subject of an appeal.
“(2) Issue a proposed final allocation plan.”
f. The RHNA final allocation
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).) “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 final allocation plan. . . . The council of
governments shall submit its final allocation plan to [HCD] within three days
of adoption. Within 30 days after the [HCD’s] receipt of the final allocation
plan adopted by the council of governments, [HCD] shall determine if the
final allocation plan is consistent with the existing and projected housing
need for the region . . . .” (Id. at subd. (g).)
2. City of Irvine
As noted in part I, ante, in City of Irvine, supra, 175 Cal.App.4th 506
the Court of Appeal concluded that “the administrative procedure established
under . . . 65584 et seq . . . to calculate a local government’s allocation of the
[RHNA] is intended to be the exclusive remedy for the municipality to
challenge that determination and thereby preclude[s] judicial review of the
decision.” (Id. at p. 510.)
In City of Irvine, the defendant, the Southern California Association of
Governments (SCAG), issued a draft RHNA allocation that allotted more
than 35,000 residential units to plaintiff, City of Irvine (“municipality”).
(City of Irvine, supra, 175 Cal.App.4th at p. 511.) The municipality filed an
18
administrative appeal of the proposed allocation with SCAG’s RHNA appeals
board. (Ibid.) The appeals board issued a written decision denying the
appeal. (Ibid.) After revising the allocations of certain other jurisdictions,
SCAG issued a proposed final RHNA allocation that increased the City of
Irvine’s allocation by more than 300 units. (Ibid.) Over the municipality’s
opposition, SCAG’s regional council approved the final allocation plan
without change. (Ibid.)
The municipality filed a petition for writ of mandate in the trial court.
The City of Irvine court described the petition as follows:
“[The municipality] . . . filed this petition seeking to
‘[v]acate and set aside’ [SCAG’s] draft allocation, the RHNA
appeals board’s denial of its appeal, and the regional
council’s final allocation plan, plus a ‘[r]ecalculat[ion of [the
municipality’s]] allocation of new housing units . . . .’ The
petition alleged that, in making the RHNA decisions,
[SCAG’s] appeals board and regional council ‘failed to
conduct . . . fair hearing[s],’ ‘proceed in a manner required
by law,’ ‘support [their] decision[s] with findings’ or ‘provide
sufficient evidence to support the findings,’ and
‘prejudicially abused [their] discretion,’ thereby breaching
defendant’s ‘duty pursuant to the Housing Element Law to
calculate [City of Irvine’s] fair share of housing for each
income category . . . .’ ” (City of Irvine, supra,
175 Cal.App.4th at pp. 511–512.)
SCAG filed a 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.’ ” (City of Irvine,
supra, 175 Cal.App.4th at p. 512.) The trial court sustained the demurrer
without leave to amend and entered a judgment dismissing the action. (Ibid.)
19
The municipality appealed. The City of Irvine court explained that the
appeal “presents the question of whether 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.) In
answering this question in the affirmative, the City of Irvine court concluded
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 RHNA
allocation reflects a clear intent on the part of the Legislature to render this
process immune from judicial intervention.” (Id. at p. 517.)
In explaining the basis for this conclusion, the City of Irvine court first
noted the interconnected nature of the intergovernmental process by which a
local government’s RHNA allocation is determined, which involves HCD, a
council of government, local governments, as well as “concerned parties.”
(City of Irvine, supra, 175 Cal.App.4th at p. 517.) In particular, the City of
Irvine 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.” (Id. at p. 518.) Thus, according to the City of
Irvine court, because “one jurisdiction’s successful [administrative] appeal
affects the RHNA allocation to other local jurisdictions,” to permit 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.) As a consequence, “ ‘allowing judicial
review would . . . delay the allocation for an entire region’ and ‘essentially
bottleneck the process and create gridlock while a particular city’s case winds
through the courts.’ ” (Ibid.)
20
In discussing the municipality’s contention that judicial review was
necessary to ensure that it received a fair hearing, the City of Irvine court
also quoted case law supporting the proposition that “ ‘a governmental entity
has no vested, individual rights in the administration of a particular
program,’ ” (City of Irvine, supra, 175 Cal.App.4th at p. 519, quoting Tri–
County Special Educ. Local Plan Area v. County of Tuolumne (2004)
123 Cal.App.4th 563, 578) and determined that the intergovernmental nature
of the RHNA program supported the conclusion that a local municipality had
no legal right to enforce in a judicial proceeding against a council of
governments pertaining to its determination of an RHNA allocation. (See
City of Irvine, supra, at p. 519.) The City of Irvine court reasoned, “[T]he
structure and scope of the RHNA statutes reflect a clear intent to vest in
HCD 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,” without the availability of judicial
review. (Ibid.)
Next, the City of Irvine court rejected the municipality’s contention that
precluding judicial review “would render the law both absurd and
unconstitutional because it makes [SCAG] not only the ‘executive decision-
maker for housing allocations’ but ‘also the final judge, jury and appellate
tribunal for any alleged violations of those laws . . . .’ ” The City of Irvine
court reasoned that the “RHNA allocation process is primarily legislative
rather than adjudicatory in nature and involves the actions of more than a
single entity.” (City of Irvine, supra, 175 Cal.App.4th at p. 520.) Further,
even assuming that the local government has a due process right in the
administration of a particular program, the City of Irvine court noted that a
21
single administrative agency may legally combine investigative, prosecutorial
and adjudicative functions without violating due process. (Ibid.)
The City of Irvine court also rejected the municipality’s contention that
because “ ‘the statutes plainly require a compliant housing element to
account for 100[ percent] of the city’s RHNA allocation,’ ” without “judicial
review of the allocation[,] it has no adequate alternative remedy.” (City of
Irvine, supra, 175 Cal.App.4th at p. 520.) The City of Irvine court pointed out
that there were statutory exceptions to the section 65584, subdivision (a)(2)
requirement that a municipality’s housing element should seek to facilitate
the development of 100 percent of an RHNA allocation. (City of Irvine, at
p. 520).
Finally, the City of Irvine court stated that “[s]upport for our decision
also exists in the 2004 amendments to the RHNA statutes.” (City of Irvine,
supra, 175 Cal.App.4th at p. 521.) The City of Irvine summarized the
changes as follows:
“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 City of Irvine court reasoned that the Legislature’s deletion of a
statutory provision authorizing judicial review evinced an intent to preclude
such review:
“[T]he 2004 repeal of the judicial remedy reinforces our
conclusion the Legislature clearly intended to eliminate
judicial remedies for challenging a municipality’s RHNA
allocation. ‘Under the rules governing statutory
construction, when the Legislature enacts an amendment,
we presume that this “ ‘indicates that it thereby intended to
change the original act by creating a new right or
22
withdrawing an existing one.’ ” [Citation.] “ ‘Therefore,
any material change in the language of the original act is
presumed to indicate a change in legal rights.’ ”
[Citations.]’ [Citation.] This presumption applies where
‘the Legislature . . . delet[es] an express provision of a
statute.’ [Citations.] 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.” (City of Irvine, supra,
175 Cal.pp.4th at p. 522.)
Ultimately, the City of Irvine court summarized its holding as follows:
“Given the RHNA statutes’ nature, their allowance for
public input, and their lengthy and extensive
administrative procedure, it is clear 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. Thus, contrary to [the municipality’s] argument,
the statutes governing the RHNA allocation procedure do
reflect a clear intent to preclude judicial intervention in the
process and the trial court properly found it lacked
jurisdiction to review the propriety of [the municipality’s]
RHNA allocation.” (City of Irvine, supra, 175 Cal.App.4th
at p. 522.)
C. Application
The Cities’ claim that City of Irvine does not bar their action is
unpersuasive.
1. The Cities’ arguments are premised on a distinction between
substantive and procedural claims that is not drawn in City of
Irvine
At the outset, we observe that all of the Cities’ arguments are premised
on the Cities’ assertion that there is a material distinction between a
23
substantive challenge to an RHNA allocation and a procedural one. However,
this distinction appears only in the Cities’ briefing and not in City of Irvine.
As noted in part III.B.2, post, 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,” with no suggestion that
procedural claims were outside the scope of this clear holding. (City of Irvine,
supra, 175 Cal.App.4th at p. 522, italics added.)
Indeed, while the Cities contend that the City of Irvine court “did not
consider any procedural claim,” and maintain that City of Irvine “contains no
citations to the fair hearing requirement in [Code of Civil Procedure] [s]ection
1094.5, subdivision (b),” in fact, the City of Irvine court expressly stated that
the writ petition in that case “alleged that, in making the RHNA decisions,
[SCAG’s] appeals board and regional council ‘failed to conduct . . . fair
hearing[s],’ . . . .” (City of Irvine, supra, 175 Cal.App.4th at p. 512, italics
added.)
2. All of the rationales offered by the City of Irvine court for precluding
judicial review in that case apply with equal force in this case
Even assuming that the Cities are correct that the City of Irvine court
“did not consider any procedural claim” as to the fairness of the RHNA
allocation process, the reasoning that the City of Irvine court offered for
precluding judicial review in that case also applies in this case and makes
clear that the Cities’ action is barred.
To begin with, while the Cities repeatedly argue that they are not
challenging the RHNA allocation itself, and that instead, they are
challenging only the procedures that resulted in the allocation, the ultimate
relief that the Cities seek in their prayer for relief is that “the [f]inal RHNA
allocation approved by SANDAG . . . [be] rescinded.” Moreover, because the
24
RHNA statutory process is designed to render an allocation of regional
housing need (see pt. III.B.1, ante [describing statutory scheme]), we can
reasonably conclude that the Legislature would not have intended to
authorize judicial review that would delay the allocation and yet result in the
same allocation, particularly because, as the Cities acknowledge in their
brief, the City of Irvine court has already concluded that a judicial challenge
that seeks an alternative RHNA allocation is barred. 16
In addition, the City of Irvine court cited case law supporting the
proposition that “ ‘a governmental entity has no vested, individual rights in
the administration of a particular program,” and reasoned that, given the
intergovernmental nature of the RHNA statutory scheme, a municipality has
no enforceable right against a council of governments in the council’s
determination of a RHNA allocation. (City of Irvine, supra, 175 Cal.App.4th
at p. 519.) These rationales are not dependent on the purported substantive
nature of the claim in City of Irvine, and provide additional support for the
conclusion that the Cities’ claims against SANDAG are barred.
The City of Irvine court also cited the availability of other potential
remedies outside of the judicial system as a reason for concluding that
judicial review is barred. (City of Irvine, supra, 175 Cal.App.4th at pp. 520–
521.) In addition to the statutory exceptions to the requirement that a
municipality seek to facilitate the development of 100 percent of its RHNA
allocation that the City of Irvine court noted (id. at pp. 520–521), the RHNA
administrative appeals process itself provides a potential remedy for a
municipality to raise objections to its allocation. Indeed, the Cities allege in
16 The Cities state that the City of Irvine court concluded “that a
jurisdiction cannot seek judicial redress for its disagreement with the number
of housing units assigned in its RHNA allocation.”
25
their writ petition that they raised their objections to the weighted vote
procedure with SANDAG while their administrative appeal was pending. In
addition, HCD is required to approve both the methodology that a council of
governments uses in developing an RHNA allocation (§ 65584.04, subds. h,
(i)) and the council of government’s final RHNA allocation (§ 65584.05, subd.
(g)). These additional administrative procedures make it clear that, as
SANDAG argues, municipalities are not “without recourse” in challenging an
RHNA allocation. Rather, under City of Irvine, municipalities “have no
recourse with the courts.” For all of the reasons identified by City of Irvine,
this lack of recourse is by Legislative design.
The City of Irvine court also noted that its conclusion that the
Legislature intended to preclude judicial review of RHNA allocations was
also supported by the fact that, in 2004, the Legislature expressly removed a
prior statutory provision authorizing judicial review of RHNA allocations.
(City of Irvine, supra, 175 Cal.App.4th at p. 521.) Further, as discussed in
part III.C.3, post, 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, in the Cities’ phrasing, “substantive” challenges to RHNA allocations.
Finally, although not emphasized in the briefs, City of Irvine was not
premised on the notion that SCAG’s substantive expertise precluded the trial
court from exercising jurisdiction in that case. If that had been the rationale
of City of Irvine, then there might be some basis for the Cities’ arguments in
this case attempting to limit City of Irvine to substantive challenges to a
council of government’s RHNA allocation. On the contrary, City of Irvine was
26
based on the rationales described above, none of which is dependent on the
purported substantive nature of the claims raised in City of Irvine. 17
In sum, all of the rationales identified by the City of Irvine court to
preclude judicial review in that case support the conclusion that the trial
court lacked jurisdiction to adjudicate the Cities’ claims in this case.
3. None of the specific arguments that the Cities raise are persuasive
The Cities’ arguments to the contrary are not persuasive. First, the
Cities contend that City of Irvine’s holding is purportedly “predicated upon
the court’s finding that the RHNA process is so elaborate and robust that it
provides complete relief.” The Cities maintain that this reasoning “utterly
fails,” when the “administrative process itself is the subject of a writ.” This
argument is unpersuasive because the City of Irvine’s holding is not
predicated solely, or even primarily, on the notion that the RHNA
administrative process “provides complete relief.” Rather, as outlined in part
III.C.2, ante, City of Irvine noted that judicial review of RHNA allocations:
(1) would interfere with the administrative process and be both
unmanageable and cause unreasonable delay (City of Irvine, supra,
175 Cal.App.4th at p. 518); (2) was not warranted given the
intergovernmental nature of the RHNA allocation process (id. at pp. 519–
520); and (3) was not intended by the Legislature (id. at p. 522). Further, to
adopt the Cities’ suggestion that any procedural challenge to the RHNA
17 In its reply brief, the Cities observe that section 1094.5, the statute
governing petitions for administrative mandate, differentiates between
procedural and substantive claims. That point is inapposite. The question
posed in this appeal is whether, under the RHHA statutory scheme as
interpreted by City of Irvine, a party may bring a procedural challenge to a
RHNA allocation. For all of the reasons stated in the text, we conclude that
the rationale of City of Irvine makes clear that the Legislature has precluded
both procedural and substantive judicial challenges to RHNA allocations.
27
“administrative process,” is permissible would eviscerate City of Irvine’s core
holding precluding judicial review in this context, given the relative ease with
which a particular claim may be characterized as “procedural.” We decline to
limit 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.
We are similarly unpersuaded by the Cities’ argument that judicial
review should be permitted in this case because, according to the Cities,
under the trial court’s reading of City of Irvine, “no procedural defect would
be sufficient to trigger judicial review.” In support of this contention, the
Cities conjure up various scenarios in which, unlike in this case, SANDAG
commits various direct violations of the statutory administrative process such
as “summarily den[ying] an appeal without following any of the requirements
in . . . Section 65584.05.” 18 Without deciding hypothetical cases that are not
before this court, we again observe that, as the City of Irvine court held, the
Legislature intended for the administrative procedure established under
section 65584 et seq. to be “the exclusive remedy” for a municipality to
challenge an RHNA allocation determination and that “judicial review” is not
available to challenge such decision. (City of Irvine, supra, 175 Cal.App.4th
at p. 510.) The Legislature was empowered to determine that the
intergovernmental allocation process that it developed was to be self-
enforcing and without judicial review. (Id. at p. 516 [“the Legislature may
18 Among the requirements that a council of governments must follow in
adjudicating an RHNA administrative appeal are: providing local
governments with notice of the appeal, making materials pertaining to the
appeal available, holding a public hearing on the appeal, and issuing a
determination of the appeal in writing with written findings. (See
§ 65584.05, subds. (c)–(e).)
28
indirectly regulate the jurisdiction of courts by abolishing or limiting
substantial rights”].)
Finally, the Cities assert that the Legislative deletion of a provision
authorizing judicial review of RHNA allocations in 2004 “is [n]ot
[d]eterminative.” 19 (Boldface omitted.) Echoing the arguments that the
Cities make as to the City of Irvine decision, the Cities argue that “the
previous language expressly authorizing judicial review relates specifically to
substantive claims . . . .” (Italics added.) Yet, we see nothing in the former
statute limiting its scope to substantive claims. On the contrary, the former
statute broadly authorized “judicial review” of a “determination of the council
of governments,” (former § 65584, subd. (c)(4)) pertaining to a “city or
county[’s] . . . share of the regional housing need,” (former § 65584,
subd. (c)(1)), without any limitation as to the type of challenge that might be
brought. Thus, the former statute is most naturally read as having
authorized both procedural and substantive challenges to a determination of
a city or county’s regional housing need, and the statute’s repeal likewise
evinces the Legislature’s intent to bar both types of challenges.
Accordingly, for the reasons stated in City of Irvine, we conclude that
the trial court properly sustained SANDAG’s demurrer without leave to
amend on the ground that judicial review of SANDAG’s RHNA allocation is
not permitted.
19 As discussed in part III.B.1, ante, the City of Irvine court noted that in
2004, the Legislature deleted a provision that provided, “ ‘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.’ ” (City of Irvine, supra,
175 Cal.App.4th at p. 521 [quoting former section 65584, subdivision (c)(4)].)
29
IV.
DISPOSITION
The judgment is affirmed. Cities are to bear costs on appeal.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
30