How are things going with housing element updates and enforcement? That was the central question at Abundant Housing LA’s latest luncheon and panel discussion for legislators and their staff members. The venue was Mayahuel restaurant, just steps from the Capitol building in Downtown Sacramento. I had flown up from LA for the day to moderate the panel. We were happy to welcome two great panelists: Professor Christopher Elmendorf of UC Davis School of Law and Elizabeth Hansburg, of YIMBY Action, the co-founder of People for Housing OC. The guests filed in, the smell of enchiladas filled the air, and it was time to get started. In this blog post, I summarize the insightful discussion that ensued.
Strong enforcement of housing element law is key to ending the housing crisis. After all, some version of housing element law has been on the books since 1969, and yet we are where we are with regard to housing affordability. While in the past, local governments were assigned low Regional Housing Needs Assessment (RHNA) numbers based in part on low levels of past housing production, which in turn were often the result of exclusionary zoning, this is not so much the case anymore, as bills like SB 828 (2018) have moved the process of calculating the RHNA in a more pro-housing direction. Metropolitan Planning Organizations like SCAG have also been pushed by advocates, including Abundant Housing LA, to allocate their RHNA to their member jurisdictions in a manner that prioritizes locating housing near jobs and transit, to align with our climate goals, let people enjoy shorter commutes and put new housing where affordability problems are most acute, instead of assuming that cities with vacant land at the outskirts the region are the best places to build.
But there is a lack of clear and objective standards in reviewing housing elements. Where there are indeed standards, they can often seem subjective. For example, a parking requirement or an open space requirement for apartments could be viewed as an undue constraint to housing, but exactly how much of a requirement is too much? Objective standards can be elusive in this area, and as the California Department of Housing and Community Development (HCD) would likely write in a review letter, the jurisdiction must analyze the constraint and the plan may require constraint removal programs depending on the results of that analysis. Clear enough?
Another problem is that when HCD has found housing elements non-compliant in the past, courts have not always deferred to that determination, for example in a worrying precedent called Fonseca v. Gilroy (2007). This court precedent emboldens noncompliant cities and weakens the enforcement of state law. One of the main consequences of housing element noncompliance is that a developer could, theoretically, apply for permits for certain affordable projects (20% affordable to low-income households or 100% affordable to moderate-income households) that don’t comply with the general plan or zoning code, and the local government would be severely constrained in denying those projects due to provisions in the Housing Accountability Act. However, this “builder’s remedy” has remained virtually unused, because developers are worried about damaging their relationships with local governments, and because of uncertainties in housing element law enforcement.
Furthermore, there are other ambiguities in the law, for example, what happens to the project if a city later gains housing element compliance? Plus, CEQA still applies to builder’s remedy projects and could be used to make life very difficult for any brave homebuilder willing to blaze the trail to force a city to approve such a project. There’s an interesting paper about how the builder’s remedy could be strengthened available here.
How are jurisdictions in Orange County doing with their housing element updates? Turns out it’s a mixed record, with some jurisdictions dipping into a bag of tricks we see time and again, including claiming that housing is likely to be built on sites with major existing constraints, such as leases, and trying to leave single-family zoned areas as untouched as possible, even though allowing multifamily housing there would be key to undoing patterns of racial and socioeconomic segregation. The housing element update process has been taxing for some cities’ staff, who often find themselves in the difficult position of being pushed one way by their City Council and another way by the state. That’s not to say the planning process isn’t important anyway, but these tensions are sometimes too much and cause people to quit, which raises the question of how the plan moves forward.
However, there are some cities that deserve credit for their good work on housing elements, including Buena Park. In a county with a reputation for being very suburban, it’s also helpful to look at examples of walkable urbanism, often oriented around Metrolink stations, including Downtown Fullerton and Old Town Orange. Precedents for integrating infill housing into neighborhoods people love can definitely be found in Orange County. This kind of infill development can make neighborhoods more vibrant, walkable, prosperous, and interesting.
The audience got in on the fun too, asking their own questions. For example, what precedents around the country should we look to for zoning reform? Houston, Oregon, and Minneapolis come to mind. Houston for its lack of zoning and strong infill development. Oregon for its statewide preemption of the most problematic local zoning rules, and Minneapolis for abolishing single-family zoning and upzoning transit corridors.
The luncheon concluded, I set out for a walk to learn a bit from the city itself while I waited for my flight home. Sacramento’s Downtown and Midtown neighborhoods are walkable and interesting. The Capitol is a beautiful building, where the legislative magic happens. The city has three light-rail lines that run mostly at grade in Downtown. You have to step up into the cars, but sidewalk ramps provide some access for people with disabilities. The neighborhood around Cal State Sacramento is infilled with mixed-use apartment buildings oriented to students, which helps them reduce their driving. The Sacramento Valley Station features a beautiful mural commemorating the construction of the Transcontinental Railroad. Sacramento is an interesting, complex place in and of itself, completely apart from its role as the seat of state government. We should always be attentive to the lessons that other cities have to teach when we’re fortunate enough to travel.
And with that, it was time to board the Yolobus to the airport and head home, pondering the lessons of the day, and ready to keep pushing to make housing more affordable for everyone who wants to call Los Angeles home.
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