By David M. Greenwald
Many communities and anti-growth activists seem to be counting on inaction from HCD and the state with regards to enforcement of housing laws. In many ways, what happens next may determine whether California addresses its housing crisis or whether the situation will get worse.
On February 2, HCD sent a letter to the city of Oakland who had submitted their revised draft housing element for review on December 7. While HCD noted, “The revised draft element addresses many statutory requirements described in HCD’s September 28, 2022 review” it states, “revisions will be necessary to comply with State Housing Element Law.”
Among other things, the city is nailed on “an inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period…”
HCD notes that the “Element was revised to describe the existing uses of some nonvacant opportunity sites, but it should demonstrate the potential for redevelopment on identified sites…”
Not only are there cities that continue to fail to gain approval by HCD for their housing element, there is a sizable number of cities and counties, in the Bay Area for instance, that did not meet the deadline to submit a Housing Element.
The question arises will the state enforce the law? Or perhaps the courts will.
On Tuesday, the San Francisco Chronicle reported, “Housing advocates are about to deliver a message to the Bay Area: Comply with state housing law or face the consequences.”
Twelve lawsuits have been filed by three pro-housing non-profits – YIMBY Law, the California Housing Defense Fund and Californians for Homeownership.
These groups are suing: Belvedere, Burlingame, Cupertino, Daly City, Fairfax, Martinez, Novato, Palo Alto, Pinole, Pleasant Hill, Richmond and Santa Clara County for failing to submit their housing element.
According to the Chronicle: “Most of the local governments targeted by these lawsuits didn’t adopt plans at all, the groups’ legal counsel told me, while others gave the illusion of compliance by greenlighting their own blueprints, even though these plans hadn’t been reviewed by the state Department of Housing and Community Development.”
The goal of the lawsuits: “Force local jurisdictions to comply with state law by developing and adopting a plan for building the required number of homes and reminding them that they’re subject to what’s known as the builder’s remedy while they’re out of compliance.”
Here is where things get interesting. There is one clear remedy here: “the builder’s remedy.” At this point, this is an untested provision of the law. It allows “developers to bypass local zoning standards in noncompliant cities to build residential projects with a certain percentage of low-income or moderate-income units.”
The Chronicle asks the key question: “why are the lawsuits necessary, given that the builder’s remedy technically goes into effect the moment a city’s housing element falls out of compliance?”
“The thing we hear from a lot of cities is, ‘We’re working on (the housing element). We’re trying,’ ” said Matthew Gelfand, attorney for Californians for Homeownership. “But while you’re working on it (past the deadline) you have to understand that you’re subject to certain penalties. … And that’s when we end up suing because they don’t want to acknowledge the penalties that come from the fact that they didn’t do their jobs earlier.”
He added, “It’s particularly frustrating in the Bay Area, because … they saw what happened in Southern California.”
What happened in Southern California was that many cities failed to adopt their housing elements by October 15, 2021. That resulted in lawsuits from some of these groups and “resulted in settlements that required the cities to adopt compliant housing plans by a certain date, with state reviews along the way, and forced them to acknowledge they were subject to the builder’s remedy.”
“From my perspective, this is just the first step in a kind of generational campaign to completely change the way land-use regulation gets done,” Keith Diggs, an attorney for YIMBY Law told the Chronicle.
The Chronicle notes, “While it is indeed frustrating that Bay Area governments didn’t learn from their counterparts in Southern California, what is especially frustrating is that lawsuits are necessary at all.
“We are talking, after all, about enforcing that simplest of concepts: the deadline. It’s baked into us in elementary school; if you don’t turn in your homework on time, there will be consequences.”
I think the biggest issue here however is that a lot of people assume that the state is not going to be able to force local communities to build sufficient housing.
HCD has clearly adopted a more aggressive approach. We have seen many communities at least hit with non-compliance.
The question is – what happens if they failed to comply? Will there be real consequences? Or are we in the realm of – “stop or I’ll say stop again.”
The potential loss of fundings is one stick. A bigger stick would be losing control over land use authority – but that seems destined to be a very lengthy court battle that could take years to sort out.
Will these lawsuits have an impact? In Southern California, most seemed to settle the lawsuits. It is unclear what the courts are willing to do about cities and counties that utterly refuse to comply with the law.
But in a real sense, the future of housing depends on what the courts and the state is willing to do to crack down on local communities.
In the meantime, it appears that the city of Davis is not going to be one of these. So the city might live to fight another day – on the next round of housing elements.