As the pro-development movement in California gains steam thanks to the work of YIMBY politicians like Scott Wiener, London Breed, and Gavin Newsom, it is necessary to examine how officials at the state level can bind local governments to increase their housing stock, particularly in states like California, where communities have been required to set projections for housing goals to accommodate population increases.
Writing for the UC Davis School of Law, Christopher Elmendorf outlines the shortcomings of the status quo of these housing requirements, and how to fix them:
The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world—our world—where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively pro-housing factions in city politics more political leverage and policymaking discretion and also facilitate regional housing deals. [Emphasis added]
It’s a long paper, but Elmendorf’s thesis is essentially that while the California model (which embraces housing goals that accommodate more general population growth and mixed housing needs) is theoretically superior to the “Northeast” model that expedites housing production for below market-rate housing, it has serious shortcomings in enforcement.
Between local governments gaming the system by using faulty assumptions (which California’s SB 828 addressed in part) or simply failing to meet their goals while state officials fail to sanction them, this model needs teeth be more effective.
Elmendorf’s reform would incorporate the following process (which I have abbreviated):
- The state would determine the housing needs of each region of the state, based on economic conditions–not just population growth.
- Local governments would then be responsible for presenting a “parcel-specific ‘housing element’” to explain how it will meet the housing needs set forth by the state. (This plan would then override all conflicting local regulations).
- The housing element will be found compliant if the plan would let the local government meet its housing quota (or the plan is unworkable for the specific locality).
- Permitting shall be done on the basis of the housing element, irrespective of restraints not imposed by the housing element.
- Local governments that fail to offer a state-approved housing element will face financial sanctions from the state.
- If a local government fails to offer a certified housing element, the mayor may offer an interim element with the same binding force as one approved by a city council.
Read Elmendorf’s Twitter thread on his paper here:
THREAD: I’ve posted a new, heavily reworked draft of “Beyond the Double Veto.” Some of the new stuff is conceptual; the rest is nitty-gritty but I hope useful to West Coast YIMBYs and allied lawmakers, https://t.co/5TwkEQ4YCf. @cayimby @anniefryman @hanlonbt 1/12
— Chris Elmendorf (@CSElmendorf) February 13, 2019