Landscape photo of the beach in Santa Monica looking north, with tall buildings in the background.

Coming soon to Santa Monica: more tall buildings. Photo by Gerzon Repreza.

This story about 12 proposed housing projects in Santa Monica is making news in housing circles because state law might compel the city to permit thousands of new homes in tall buildings that do not conform to local zoning. This post explains how the Housing Element process might strip Santa Monica of its “local control” over land use.

First, some background: California cities are required to have a General Plan for development, which includes eight mandatory elements: Land Use, Open Space, Conservation, Housing, Circulation, Noise, Safety, and Environmental Justice. Every eight years, cities have to update the Housing element of their general plans, or Housing Elements, to accommodate projected population growth, as determined by the Regional Housing Needs Allocation (RHNA, say “REE-nah”) process.

For background, you can read our Housing Elements FAQ and check out YIMBY Action’s RHNA explainer.

While local cities have a great deal of control over where and how to accommodate growth, housing element updates have to meet various requirements under state law, and the state department of Housing and Community Development (HCD) reviews them to make sure cities are following the rules.

For many years, this was a box checking exercise for most cities because there were no real penalties for not having a compliant housing element. Some cities didn’t even bother filing them at all.

However, recent changes to state law and personnel have made the standards for housing element updates much more rigorous. Cities now have to accommodate much more housing while accounting for likelihood of development and Affirmatively Furthering fair Housing (AFFH). This means cities can’t get away with stuff like claiming that a brand-new shopping mall will be redeveloped into hundreds of affordable homes or trying to put all their new affordable housing in formerly redlined areas.

These stricter standards have been paired with stepped-up enforcement from the state and intense scrutiny from pro-housing advocates: HCD has hired dozens of new staffers to offer technical assistance to help cities develop housing elements that meet the new standards and hold cities accountable when they fail to do so.

Meanwhile, YIMBY activists, including Abundant Housing, have done extensive work to ensure cities pass high-quality housing elements by participating in public outreach processes during the development stage, then analyzing drafted housing elements and submitting detailed comment letters to HCD. This work is vitally important because HCD staffers have limited time and resources to analyze these documents. HCD feedback to cities often draws directly from our comment letters, which you can read here.

The work has paid off in two ways. First, many cities have adopted much higher quality housing elements than they otherwise would have. These plans set cities on the path to creating badly-needed housing at all levels of affordability, and we look forward to seeing them implemented.

Second, rigorous enforcement means anti-housing cities are now officially noncompliant with state housing law, and noncompliance has serious consequences: cities without compliant housing elements can lose state funding for a variety of projects, and for affordable housing in particular.

More concerning for housing-skeptical jurisdictions, cities that miss the deadline to adopt a compliant housing element can lose all ability to control development by becoming subject to the so-called Builder’s Remedy in the 1990 Housing Accountability Act (HAA), which the law professor Chris Elmendorf publicized in this white paper. Using the Builder’s Remedy, developers can ignore local general plans and zoning restrictions for ANY building that is 20% affordable, so long as the city is out of compliance with housing element law. (You can see which cities do not have compliant housing elements here.)

This is particularly attractive in exclusionary, anti-housing cities like Santa Monica, where rent is almost $4,000 a month and the average home costs $1.8 million, but restrictive local zoning and onerous permitting processes make it nearly impossible to build a new apartment building under normal circumstances. Despite concerns about potentially harming their relationship with the city, which will have to sign off on future projects that go through normal approval channels, developers are going for it: the fourteen projects submitted in Santa Monica include almost four thousand new homes, including 829 affordable units for low-income families.

The bottom line: as a result of YIMBY-led changes to state law and years of dogged YIMBY activism, Santa Monica is going to get thousands of new homes, including almost a thousand subsidized homes for low-income households.