Opinion: Is Resistance to Housing Now Futile?

Key points:

• California’s housing laws are becoming more enforceable.
• Fairfax, Marin County, is a battleground for housing enforcement.
• A 243-unit apartment project is facing opposition in Fairfax.

For decades, resistance to housing development was not only tolerated in California—it was expected. Especially in wealthy, suburban enclaves like Marin County, local governments routinely ignored or subverted the state’s housing mandates. The state’s Regional Housing Needs Allocation (RHNA) goals were toothless. Zoning codes, discretionary approvals, and endless procedural hurdles gave towns near-total control over whether, how, and where to build. The result? Soaring housing prices, widening inequality, and a state mired in a deep, decades-long housing crisis.

But the tide may finally be turning.

Thanks to a series of laws passed in recent years—including SB 35, the Housing Accountability Act, and new enforcement powers given to the Department of Housing and Community Development (HCD)—the state is now equipped with tools to override local obstruction. And for the first time in years, it appears that the state may be willing to use them.

Fairfax, a small town in Marin County, has become the latest battleground—and perhaps the clearest test—of this new era of state housing enforcement. At the center of the storm is a proposal by Mill Creek Residential to build a 243-unit apartment complex on the site of a shuttered former hot tub and yoga retreat known as Frogs. The project would include 25% affordable units, and the site was explicitly identified in Fairfax’s state-certified housing element as a key location for meeting its obligation to plan for 490 homes between 2023 and 2031.

Under the terms of that housing element—and California law—the project qualifies for ministerial approval, meaning it should not be subject to lengthy public hearings, lawsuits, or arbitrary local denials. Yet earlier this year, Fairfax’s planning director abruptly declared that the project no longer qualified, citing its location in a “high fire hazard severity zone.” That reversal appears to have no legal basis under state housing law or under the zoning changes the town had already adopted.

“This is a town just saying, ‘We don’t care what the law says, we’re gonna say no,’” Mill Creek attorney Riley Hurd told the San Francisco Chronicle. “They’re gonna get their housing element decertified, they’re gonna get sued and lose. The question is why? It might be as simple as, ‘We are going to have a court make us do it.’”

As Hurd points out, the cost of resistance is no longer theoretical. YIMBY Law, an organization that has successfully sued cities across California for violating housing mandates, has already warned Fairfax that its conduct violates state law. “Fairfax is walking into a buzzsaw,” said Executive Director Sonja Trauss. “They are going to waste a lot of money and they are going to lose.”

But if the legal and political winds are shifting, Fairfax is fighting them with all the force of a community still living in a different era. Opponents of the Frogs project have mounted a campaign to recall the town’s mayor and vice mayor, gathering more than enough signatures to trigger a special election. The recall petition accuses the officials of betraying the community, curtailing free speech, and endangering public safety by supporting high-density housing.

Supporters of the recall argue that a six-story apartment building would snarl traffic, strain infrastructure, and pose a deadly risk in the event of a wildfire or earthquake. Others say the project’s affordability levels are not deep enough to help lower-income residents and claim that the town is being bullied into compliance by state bureaucrats and Sacramento politicians.

“I was born and raised in this town,” said local bar manager Candace Neal-Ricker. “Affordable housing would be great, but that is not what this project is.”

Yet the reality is that Fairfax’s state-certified housing element obligates the town to plan for—and allow—this very project. And while critics say the town’s character is at risk, the status quo they defend is one of exclusion. Median home prices in Fairfax top $1.4 million. Average rents are over $2,600 a month. And despite its progressive image, Marin County remains one of the most racially and economically segregated regions in California.

As Dan Walters of CalMatters observed, “City councils, under pressure from constituents to preserve the status quo, devised all sorts of strategies to fend off state officials, but the state has been relentless in insisting that local planning documents favor housing, with penalties for communities that don’t comply.”

Marin County’s history of obstruction runs deep. In the early 1970s, as the region’s population grew, the Board of Supervisors issued a planning manifesto titled Can the Last Place Last?, which declared the county should strictly limit housing growth and likened new residents to invading “hordes.” That anti-growth ethos became entrenched policy. Marin even refused to expand water infrastructure as a means of curbing development. While neighboring regions grew, Marin stood still.

Former Governor Jerry Brown even carved out a unique legal status for Marin by classifying it as “suburban” instead of “urban,” thereby lowering its state-mandated housing requirements. But such favors are increasingly out of step with a state facing a housing deficit in the millions. Marin County’s latest RHNA target is 14,000 new homes by 2032—a figure that dwarfs anything in the county’s recent history.

The battle in Fairfax, then, is about far more than one apartment complex. It’s about whether California’s housing laws mean anything at all. If a town like Fairfax, after voluntarily submitting and receiving state certification for a housing plan, can simply reverse course when the time comes to follow through, then the entire system collapses. It sends a message to every other city in California: play nice on paper, but block projects in practice.

“If there is this much outrage and hyperbole over building less than 50% of the assigned number,” Hurd said, “it’s very clear they do not intend to come anywhere close to achieving the full number.”

The danger is not just that Fairfax will fail to meet its goals, but that it will set a precedent for how to weaponize process, delay, and political pressure to sabotage housing before a foundation is ever poured. Already, developer interest is cooling. “I think what the town is banking on is that the project cannot sustain the costs and delays associated with their obstinance,” Hurd added. “Time kills all deals.”

And while the law clearly favors the developer, enforcement is not automatic. Hurd expressed frustration that the state has been slow to intervene in other cases. “Everybody got spooked that there would be serious repercussions,” he said. “And so far I haven’t seen them.”

That may change. If the state fails to act, it risks undermining years of progress. But if it follows through—decertifying the town’s housing plan, enforcing ministerial approval, or backing litigation—it could mark a turning point. A line in the sand.

For now, Fairfax is a test case. And in the broader war between NIMBYism and housing justice, it may well determine whether resistance is merely futile—or finished.

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