When California housing regulators argue with voters, who wins?

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

Planners in the Humboldt County city have spent years figuring out how to prepare the ground for nearly 1,000 new housing units by the end of the decade, a quota assigned to them by the California Department of Housing and Community Development. 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 has set off a local political firestorm over the housing project, the loss of parking and the very future of Eureka. Hence the November ballot measure, which would impose costly new parking requirements on land conversion projects and direct development to an abandoned high school across town.

The Eureka parking battle is typically Eurekaian in many details, but the broad strokes of the story are familiar. In the past five years, state lawmakers have passed dozens of new laws requiring local officials to approve more housing, whether they like it or not. Regulators and the state Justice Department have become increasingly inflexible. Lawsuits in Huntington Beach and La Cañada Flintridge and settlements in Fullerton and Coronado are testament to the new regulatory reality.

What makes the Eureka housing controversy unusual is that it’s not local elected officials who are challenging the state’s regulations. In November, it may be voters themselves who will kick off the state-approved plan.

If so, the city could find itself in a legal bind. As more state-mandated deadlines for housing construction draw near, other California cities could soon find themselves in the same situation.

Mixed messages from the courts

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

Eureka holds a special place in this history. In 1949, city officials voted to use federal funds to build “low-income” housing for veterans. Local backlash spawned a statewide campaign that eventually added Section 34 to the state constitution, a provision that gives local voters a veto over new public housing projects. Seventy-five years later, housing advocates have yet to succeed in removing the provision from state law.

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

If Eureka voters buck this recent trend and mobilize to preserve parking lots, recent case law does not offer a clear view of what might happen.

The justices have ruled that when local restrictions, even those adopted by popular vote, make it impossible to comply with state housing requirements, state laws tend to prevail. But in cases where local restrictions do not make it impossible, but simply more expensive or complicated, for cities to comply with state orders, the courts’ guidance has been inconsistent.

Encinitas, in San Diego County, is where this legal confusion began. The city passed a law requiring voter approval for any major changes to housing and land use policy. In 2016, when the city submitted its state-mandated housing development plan to voters for approval, they rejected it. The city tried again in 2018, and once again, voters refused to cooperate.

Eventually, a local judge intervened, writing that “the Court must find a way to break the impasse” and let the project go forward despite voters’ objections. But when the city itself turned to the Court, asking for permission to ignore voters for all future housing projects as well, another judge refused. The first decision, suspending voters’ referendum power, was clearly an isolated case—and only after voters had repeatedly given the “wrong” answer.

The policy of no

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