What is the RHNA appeals process?
The release of draft RHNA allocations initiates the appeals phase, the final step in the RHNA process. Government Code Section 65584.05 allows a jurisdiction or HCD to appeal the draft RHNA allocation for any Bay Area jurisdiction (except Solano County and its cities, where jurisdictions have formed a subregion that will conduct its own appeals process). 

A jurisdiction may file an appeal of its own draft RHNA allocation and/or one or more appeals of the draft allocations of other jurisdictions. An appeal may request an increase or decrease to a draft RHNA allocation. Each jurisdiction’s draft RHNA allocation is shown in the Draft RHNA Plan: San Francisco Bay Area, 2023-2031. 

The major steps in the appeals process are:

• A Jurisdiction or HCD has 45 days to submit an appeal in writing.
• Jurisdictions, HCD and members of the public have 45 days to comment on the appeals filed.
• ABAG must conduct a public hearing to consider appeals and comments.

Members of the public can receive notification about appeals filed, comments received, and public hearing details by joining the RHNA Mailing List. See the ABAG 2023-2031 RHNA Appeals Procedures for more details about the requirements for an appeal and how ABAG will conduct the public hearing.

What is the timeline for the RHNA appeals process?

The anticipated schedule for the key steps in the appeals process are:

• May 25, 2021: ABAG notifies jurisdictions and HCD about adoption of Final RHNA Methodology and Draft Allocations.
• July 9, 2021: Deadline for a jurisdiction or HCD to submit appeals; ABAG notifies jurisdictions, HCD, and interested parties about appeals submitted and posts information on its website.
• August 30, 2021: Deadline for comments on appeals submitted; ABAG notifies jurisdictions, HCD and interested parties about comments received and posts appeals received on the ABAG website.
• September and/or October: ABAG conducts public hearing to consider appeals and comments received; ABAG notifies jurisdictions, HCD, and interested parties at least 21 days prior to hearing.
• October or November: ABAG ratifies written final determination on each appeal and issues Final RHNA Allocations that adjust allocations as a result of any successful appeals.
• November or December: ABAG Executive Board conducts public hearing to adopt Final RHNA Plan.

Timing for the final steps of the appeals phase depends on the number of appeals received, as the public hearing may stretch over multiple days.

Members of the public can receive notification about appeals filed, comments received, and public hearing details by joining the RHNA Mailing List.

What are the reasons a jurisdiction or HCD can submit an appeal?

State Housing Element law allows an appeal to be filed only for the following three reasons:

1. ABAG failed to adequately consider the information submitted as part of the local jurisdiction survey (see Government Code Section 65584.04(b) for more details about the survey). ABAG conducted this survey in early 2020 and received responses from 72 jurisdictions.
2. ABAG did not determine the jurisdiction’s allocation in accordance with its adopted methodology and in a manner that furthers, and does not undermine, the RHNA objectives identified in Government Code Section 65584(d).
3. A significant and unforeseen change in circumstances has occurred in the local jurisdiction or jurisdictions that merits a revision of the information submitted as part of the local jurisdiction survey. Appeals on this basis shall only be made by the jurisdiction or jurisdictions where the change in circumstances has occurred.

Government Code Section 65584.04(g)) also specifies criteria that cannot be used a basis for reducing a jurisdiction’s allocation:

• Any local ordinance, policy, voter-approved measure or standard limiting residential development.
• Underproduction of housing from the last RHNA cycle.
• Stable population numbers in a jurisdiction.

See Sections C and D of the ABAG 2023-2031 RHNA Appeals Procedures for more details.

What are the requirements for submitting an appeal?

According to Government Code Section 65584.05, appeals shall:

• Be based on comparable data available for all affected jurisdictions and accepted planning methodology.
• Be supported by adequate documentation.
• Include a statement as to why the revision is necessary to further the RHNA objectives.
• Be consistent with, and not to the detriment of, the development pattern in Plan Bay Area 2050.

See Section C of the ABAG 2023-2031 RHNA Appeals Procedures for more details.

How can a jurisdiction or HCD submit an appeal?

On May 25, 2021, ABAG-MTC staff emailed Bay Area local governments and HCD with information about the draft RHNA allocations and the appeals process, including a link to the form for submitting an appeal. A jurisdiction or HCD can email rhna@bayareametro.gov to receive another link to the form.

How will ABAG conduct the public hearing to consider RHNA appeals?

Housing Element Law requires ABAG to hold a public hearing to consider RHNA appeals. Depending on the number of appeals ABAG receives, the hearing may occur over multiple days. RHNA appeals will be heard by the ABAG Administrative Committee, which will have final authority for decisions on appeals. A committee member must recuse him/herself on an appeal affecting his/her jurisdiction.

The basic structure of the appeals hearing is for the applicant to make an initial argument, to which ABAG-MTC staff provides a response, followed by an opportunity for rebuttal by the appellant. If a jurisdiction or HCD appeals another jurisdiction’s allocation, the procedures allow for the subject of the appeal to respond to the initial arguments and offer a rebuttal after the staff response.

Following the rebuttal, there is time for public comment in advance of the Committee’s discussion and preliminary vote on the appeal. The Administrative Committee will issue a preliminary determination on each appeal and then review and ratify its final decisions at a meeting after the close of the public hearing to ensure it was uniform in its decision-making.

See the ABAG 2023-2031 RHNA Appeals Procedures for more details.

What happens to the units if the appeal of a jurisdiction’s draft RHNA allocation is successful?

Housing Element Law requires ABAG to allocate all of the 441,176 units assigned to the Bay Area by HCD. If the appeal of a jurisdiction’s draft RHNA allocation is successful, ABAG must redistribute the units to other local governments in the region.

ABAG will redistribute units to all local governments in the region in proportion to a jurisdiction’s share of the RHND after appeals are determined and prior to the required distribution. Applicants whose appeals are upheld are not excluded from redistribution.

See Section I of the ABAG 2023-2031 RHNA Appeals Procedures for more details.