Construction site in Berkeley (Photo Credit: Mike Linksvayer/Flickr)
As home prices rise and rents go up, the cause of California’s affordability crisis is becoming increasingly obvious: There isn’t enough housing for everyone. Why? Because communities won’t let builders build them.
This isn’t just a problem for families living in poverty—or even close to poverty. For people like me, a thirty-something renter earning a moderate income in the Bay Area (where median home sale prices have climbed well over $1 million in many cities), there seems to be no foreseeable future that involves homeownership.
And I’m certainly not alone. The growing YIMBY or Yes-In-My-Back-Yard Movement is full of people with my profile: renters in their 20s and 30s who are locked out of owning a home, struggling to pay rising rents, or living with housemates when we want to start families. We know our housing struggles are not the result of impersonal economic forces, or lack of individual effort, but derive from unenforced laws and bad policy decisions that have restricted housing growth for decades.
We are not asking for public assistance. We are not asking for special treatment. We are just asking the Legislature—and our local leaders—to enforce existing laws and local plans so more homes get built, prices come back out of the stratosphere, and we have the opportunity to do what every generation before us has done: buy a house, settle down, and live the California dream.
Why can’t builders build, and why hasn’t the Legislature fixed this problem?
California hasn’t run out of timber, I-beams, or skilled labor. No, our problems are political. Onerous, lengthy, and capricious local housing approval processes—often dominated by NIMBY groups opposed to any and all new housing—prevent developers and construction tradespeople from building the future.
More than 100 housing bills are now under consideration in the Legislature, but very few will address this core issue: the need to streamline housing approvals and ensure every jurisdiction is building their fair share. (This point has also been made recently by the CA Economic Summit.)
There are some notable exceptions, however, including two important new bills—SB 167 (Skinner) and AB 678 (Bocanegra)—that will strengthen an existing law, the Housing Accountability Act, and limit the ability of municipalities to disapprove or downsize housing projects just because one of the neighbors doesn’t like it.
This isn’t the first time state leaders have tried to do this, of course. The Legislature sought to curtail the power of NIMBY groups way back in 1982 when they passed the HAA, then known as the “anti-NIMBY law,” and it has been amended 15 times since then. In 1990 the law was substantially expanded to include a preamble that sounds like it was written yesterday. It reads in part,
(1) The lack of affordable housing is a critical problem which threatens the economic, environmental, and social quality of life in California.
(2) California housing has become the most expensive in the nation. The excessive cost of the state's housing supply is partially caused by activities and policies of many local governments which limit the approval of affordable housing, increase the cost of land for affordable housing, and require that high fees and exactions be paid by producers of potentially affordable housing.
In 2001, the Legislature again amended the law and dropped the word “affordable” from its findings. Why? Because problems that once afflicted the least of us are increasingly afflicting most of us. As Jennifer Hernandez, John Gamboa, and Herman Gallegos wrote recently, we learned this yet again when the housing bubble burst in 2008: Housing unaffordability impacts everyone.
Now is the time to apply these hard-earned lessons. When individuals break the law, they are fined or imprisoned. When businesses break the law, they may lose the licenses they need to operate. Yet when municipalities violate the Housing Accountability Act, they suffer almost no repercussions. Under current law, city councils like Berkeley and Los Gatos pay little to no attention to the HAA because they know the worst that will happen is a court will instruct them to approve the housing development. That can take years.
As a result, localities have been violating the HAA with impunity for more than three decades. That’s why we need the changes outlined in SB 167 and AB 678 to strengthen this law.
What exactly do SB 167 and AB 678 do?
Increase the evidentiary standard, requiring municipalities to provide “clear and convincing evidence” before disapproving housing projects: Under current law, when local agencies deny a project that complies with local zoning or their general plan, they must provide “substantial evidence” that the proposed development would have a negative impact on human health or safety. The problem is, courts have determined “substantial evidence” to mean only “more than a mere scintilla.” In other words, “substantial” under the law doesn’t mean “substantial” in ordinary English language use. Almost any rationale is accepted under this standard—allowing localities to consistently thwart the intent of the HAA. By elevating the evidentiary standard to “clear and convincing” evidence, localities will be required to provide real proof that disapproving housing—or conditioning approval upon lower density—is actually going to harm the community’s health or safety. My guess? More often than not, that’s something most communities can’t do.
Pay attorney’s fees to all petitioners: While current law requires localities that violate the HAA to reimburse affordable housing developers for reasonable attorney’s fees, SB 167 and AB 678 expand this provision to all petitioners. There is good reason for this: Small nonprofit housing organizations are vital enforcers of the state’s housing goals. Even if the Legislature decides to expand the powers of the Attorney General to monitor housing law compliance (something being considered this year), one statewide office can’t be expected to keep tabs on housing projects in more than 500 different municipalities and counties across California. Decentralized enforcement only works if local groups are reimbursed for holding local governments accountable to state laws. The Legislature needs to give local housing watchdogs the tools they need to do the job.
Conduct an HAA analysis: Even though the HAA has been on the books since 1982, many localities are unaware of their responsibilities under the law. SB 167 and AB 678 would change that—requiring local government staff reports for proposed housing development to not only assess compliance with local zoning rules and the general plan, but with state law, as well.
Levy fines for non-compliance: This one’s easy. When cities violate state law by disapproving housing projects consistent with their own local plans, there should be consequences. SB 167 and AB 678 would impose fines on cities like Lafayette that repeatedly fail to approve projects in the locations or with the density they’ve already approved.
What the bills don’t do: It’s important to clear up a couple of misconceptions about SB 167 and AB 678. The bills do not implement “by-right” development, nor do they limit local control over land use designations (i.e. what kind of housing they plan to build where) or inclusionary zoning (i.e. how much below-market housing they want as part of new projects). Since proposed housing development approvals remain discretionary, the bills would not impact the California Environmental Quality Act.
These changes to state law aren’t too much to ask for—and they will go a long way toward unlocking California’s housing market.
Without them, there will be more and more people like me, frustrated by the unwillingness of our leaders to help us live in California—and ready to vote on it.
Brian Hanlon is co-executive director of the California Renters Legal Advocacy & Education Fund
