In 2017, the state legislature passed SB167 to strengthen the Housing Accountability Act. The changes it brought were profoundly boring: it simply required cities to follow their own zoning laws instead of making them up on the spot at every project hearing.

If you’ve read the Color of Law by Richard Rothstein, then you know that multi-family apartments are banned in most parts of cities, as in San Mateo, to uphold segregationist policies like redlining. Even so, when an apartment building is proposed in one of the very few places where multi-family buildings are even allowed, cities will find some way to block it anyways. This is usually done by bending their own rules, by making up interpretations of their zoning code on the spot.

And so begins the reply brief we’ve filed today in our appeal against the City of San Mateo:


The provisions of SB167 and the many other bills passed back in 2017 to strengthen the Housing Accountability Act take aim at a foundational yet deeply flawed principle of California land use: local control. This principle is so deeply enshrined in the minds of certain judges that the trial court before this found the Housing Accountability Act to be an unconstitutional infringement on cities rights despite not affording us the opportunity to rebut that claim prior to their ruling, which brings us to our appeal.

The city’s argument is that when the Housing Accountability Act changes the standard of evidence of zoning compliance from “trust the cities” to “if a reasonable person thinks so,” this delegates municipal authority to a private person in violation of the state constitution. This is false. The HAA offers no such interpretation; instead, it simply requires that cities approve and deny housing proposals on a reasonable, predictable basis in accordance with state law. The HAA doesn’t defer to a city’s interpretation as to whether or not they’re following state law. That is a patently absurd proposition. You wouldn’t ask a police officer to self-certify that every life they’ve extinguished with a gun was done in a lawfully justified manner. Indeed, one must only look at the state of qualified immunity to know the results of this strategy where those charged with following the law are given the final say on whether or not they’ve broken the law.

What SB167 does is it rebukes this longstanding assumption that cities are owed deference on all matters relating to zoning. There can be no deference on whether a standard is objective as defined in the HAA, nor whether a project is “consistent” with objective standards, since both are primarily questions of state law. Giving a city deference to adopt an interpretation that effectively “objectifies” a subjective standard is merely an attempt to get away from that and frustrates the legislature’s intention to remove that deference.

Next we wait for the city’s response, after which the court will finally issue its ruling in this case.