By David M. Greenwald
Davis, CA – Chris Elmendorf is a Professor of Law at UC Davis, and yesterday he made a rather provocative tweet that generated a huge and very interesting discussion: “Want (another) lesson in how CA cities abuse the state’s Housing Element Law? Hard to do better than the place I teach, Davis, which just released its draft housing element for 2021-29.”
Back in December, Elmendorf with some colleagues at UCLA and Berkeley co-authored a paper, “I Would, If Only I Could” – How Cities Can Use California’s Housing Element to Overcome Neighborhood Resistance to New Housing.
In it they argue, “City councils are on the front lines of California’s housing crisis. But local lawmakers who understand that California needs to accommodate a lot more housing are stuck in a political bind. Wherever they might put new housing, neighborhood groups spring up and oppose it. The same groups will have money to spend or voters to turn out at the next election. What’s a well-meaning city councilperson to do?”
They believe that the housing element process itself provides a way forward.
“This process hasn’t always worked well in the past, but the legislature and HCD have recently strengthened the framework. There are now substantial political advantages for city officials to pursue pro-housing policies through their housing element, rather than through the normal municipal lawmaking channels,” they write.
They put forward three points. First, “The alternative is losing local control” because, under the new state law, “cities that fail to adopt a timely, substantially compliant housing element forfeit their authority to deny a broad class of housing projects on the basis of the city’s zoning code and general plan.”
Second, “Cities normally make land use policy on a piecemeal, project-by-project basis. This tends to privilege the neighbors who have the most at stake in each project. Cumulative and citywide impacts get short shrift. The housing element update lends itself to a different mode of land use policymaking: the hashing out of citywide deals, informed by long-term citywide and even regional perspectives.”
Finally, they note, “A paradox of the Housing Element Law is that it requires state bureaucrats who have little information about local conditions to evaluate a housing element’s claims about ‘realistic’ zoned capacity, and about the existence and severity of other local constraints on housing development. But this also presents an opportunity for well-meaning city councilpersons, who can ask their planning departments or consultants to gather data and publicize local barriers. If the city is revealed to have problems, HCD may insist on bold programs for upzoning and constraint removal as a condition of housing element certification.”
That gets us to Elmendorf’s tweet stream from Sunday.
Davis, as he points out, is an “affluent college town” and “a bedroom community for Sacramento’s well-educated elite.”
He writes, “As one might expect, given its demographics, Davis is also NIMBY central, with a passel of voter-adopted growth controls and the only city zoning code of which I’m aware that puts agriculture atop the hierarchy of uses.”
Per ACS, “Davis’s housing stock is ~static, growing a paltry 0.9% over 8-yr period from nadir of Great Recession, compared to 4% growth in Sacramento MSA as a whole.”
He writes: “If the most desirable & expensive city in region is growing at 1/4 the regional rate, that’s a big red flag.”
He also attacks the notion that Davis looks somewhat between comparing it to regional growth (5% vs. 6%) by noting, “But regional number is biased down b/c of missing data. And Davis, given prices & transit, should be growing *faster* than regional avg.”
He continues: “Davis’s state-assigned ‘RHNA’ (housing target) for next 8 years is 2075 units, roughly twice its target for the last cycle and equivalent to 8% growth over the period. Still paltry, but better.” For comparison, LA area cities are planning for 20% growth.
“So, how does Davis propose to accommodate 2075 new homes? Almost exclusively through development proposals that city describes as ‘planned or approved’” he writes.
He is skeptical on this point: “But is it likely that all 2409 of these ‘planned OR approved’ units will actually be approved and built over next 8 years, roughly doubling Davis’s growth rate? Count me skeptical…”
He writes that “the city’s table of ‘planned OR approved’ units hints at problems.” First that more than half are still under review and not approved, and projects approved as far back as 2004 and 2009 still have not been constructed.
Furthermore, he notes, “The housing element provides no information about *what share* of the 2409 ‘planned or approved’ units can realistically be expected to built during planning period. Instead, it naively presumes that all 2409 will be built. “
“You might think, as a gut check, that Davis would at least report what share of the 1041 ‘approved and pending’ units counted toward RHNA in its *previous* housing element were actually developed during the previous planning period,” he continues. “You would be wrong.”
Even with these generous assumptions, he notes that even with this assumption that 100 percent of those planned or approved units would be approved falls short as the low income units, even with their generous projects leave a shortfall.
He writes: “Thus, city must rezone additional land at statutory density of 20 du/acre.
“Davis’s response?” he tweets. “We’ll figure out what to rezone some other time.”
For those wondering, he finally makes reference to Measure J: “The gems keep coming. City must analyze, & mitigate or remove ‘constraints’ to development. Davis is littered with ’em, including annual growth caps, voter-approval rules, restrictive zoning, a 35% IZ requirement (anti-rental), & more. So what does city say about this?”
The city notes: “Most projects are infill projects that require a General Plan Amendment and zoning amendment.” The city explains, “This is largely a result of the nature of the built-out community, as opposed to a community with a large supply of undeveloped greenfield land that can be more comprehensively planned.”
There are a number of problems with this analysis, one of which of course that this limitation is self-inflicted. As Elmendorf points out, “Since when does ‘the nature’ of a single-family neighborhood prevent city from planning for anything else?”
The city also argues, “The City has experienced steady development of both residential and non-residential uses, indicating the need for a General Plan Amendment and/or zoning amendment does not constrain development.”
That statement is almost laughable (actually it probably is laughable). Elmendorf points out, “A statement made w/o any reference to normal or healthy rate of growth for city with Davis-level prices & transit.” But I would probably go further and question the accuracy of such a statement. Furthermore we have largely used up the empty parcels in town—which means that growth is largely going to be limited in the future to either very expensive re-development or highly problematic peripheral growth.
He argues: “By requiring GP amendment and rezoning for most projects, Davis vitiates CA’s Housing Accountability Act, which in most circumstances protects only plan-and-zoning compliant projects. “
He continues: “City does acknowledge that its IZ ordinance requires a new feasibility study to comply w/state law, and that one quantitative growth control has been preempted. But city denies that anything else is a ‘constraint’ requiring mitigation.”
Finally he adds, “Finally, there’s the new mandate that housing elements ‘affirmatively further fair housing.’”
He writes: “The gist of Davis’s response: we’re not too segregated, and all our neighborhoods are ‘high opportunity’ relative to region. So, we’re good.”
I had not had a chance to dive into the recently released Housing Element report, but this is a pretty solid analysis from someone who is clearly involved in this issue on a broader scale.
In his co-authored paper, they conclude: “The Housing Element Law is not a panacea for California’s housing woes. But deployed conscientiously, it can help soften the political dilemmas now faced by local government officials who would like to do their part.” But not in the direction they (the city of Davis) are going.
—David M. Greenwald reporting
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