Who should control basic land use policy in California’s ongoing housing crisis?

California's ongoing and pernicious housing crisis has many difficult-to-fix causes, including a tax system skewed by Proposition 13, a California Environmental Quality Act prone to abuse by those with various private, non-environmental objectives, and local planning and zoning policies that make it exceedingly difficult, time-consuming, and risky to obtain approvals for new projects. And too often, local officials sworn to uphold the law either wilt in the face of vocal anti-development project opposition or become the elected champions of the NIMBYs.

According to the Legislature:

"California has a housing supply and affordability crisis of historic proportions. The consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state's environmental and climate objectives."

If the Legislature means any of that, however, then the appropriate balance between the state's interest in ensuring an adequate supply of housing and the local interest in controlling what, if anything, gets built must be squarely on the table. The balance has long tilted in favor of largely unrestrained local control, resulting in overly restrictive planning and zoning regulations that have constrained supply, broken regional housing markets, and dramatically increased the costs of housing. Significant state-level intervention is required if the state is to ever successfully address California's unsustainable housing shortage.

For the last several decades the Legislature has largely tinkered around the margins, while the housing shortage has only grown more acute. California now has more than a dozen statutes that provide various reforms and incentives to facilitate and expedite the construction of housing. Those statutes include the Housing Element Law, which requires local governments to periodically update their general plans to accommodate regional housing need, and the Density Bonus Law, which allows developers to receive a density bonus when a portion of a residential project's units are rented or sold at affordable rates.

Each of these laws chip away, to one degree or another, at the "police power" conferred to cities and counties via Article XI, Section 7 of the California Constitution. The state's courts have said that this inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders, and preemption by state law is not lightly presumed. See, e.g., City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4th 729 (2013).

But the laws intended to facilitate and expedite housing construction are not enough, in part because some cities and counties simply do not comply. There is a long and well-documented history of local non-compliance with the Housing Element Law. For example, under Gov. Gavin Newsom, the state recently sued Huntington Beach for willfully refusing to comply with state housing laws. Similarly, Attorney General Xavier Becerra recently published an opinion addressing the fact that several California cities have adopted ordinances conditioning the grant of a density bonus on the payment of a so-called "public benefit fee" despite the unambiguous legislative intent of the Density Bonus Law to "contribute significantly to the economic feasibility of lower income housing in proposed housing development" and the Legislature's mandate that the statute "be interpreted liberally in favor of producing the maximum number of total housing units."

The Housing Accountability Act is a better model for the type of preemptive laws that will ultimately be required if the state is to produce enough housing. Enacted in 1982 and sometimes referred to as the "anti-NIMBY law," the Housing Accountability Act is intended to "meaningfully and effectively curb[] the capability of local governments to deny, reduce the density for, or render infeasible housing development projects."

The Housing Accountability Act attempts to deliver on that intent by severely restricting the ability of cities and counties to disapprove or reduce the size of housing projects. To do so a city or county must determine, based upon a preponderance of the evidence in the record, that the project would have a "specific, adverse impact upon the public health or safety." The statute defines a "specific, adverse impact" as a "significant, quantifiable, direct and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete." The threshold for making that finding is thus incredibly high and the burden of proof is on local governments.

Importantly, the Housing Accountability Act does not allow disapprovals or reductions in size even if a project might have an adverse impact on public welfare. And the Legislature has made clear that the conditions that would have a specific, adverse impact upon the public health and safety "arise infrequently." Jurisdictions that improperly deny or reduce the size of housing projects are responsible for the developer's attorney's fees and they face the possibility of severe monetary fines.

While the Housing Accountability Act has been substantially strengthened in recent years and should begin to result in the production of additional housing, it does not apply to all housing projects and is ultimately not broad enough to fix regional and state-wide housing problems. Several recent bills would have had a much more direct and substantial impact on housing supply and affordability, for the benefit of the overall welfare of the entire state, but they have not been adopted.

For example, Senate Bill 827, sponsored by State Sen. Scott Wiener in 2018, would have overridden local zoning requirements to promote greater housing density near transit. SB 827's goals were admirable: easing land use regulations to facilitate needed new housing and reduce greenhouse gas emissions from commuters by placing more homes near greener transportation infrastructure. But reducing some of the land use regulatory power of local governments was too drastic an approach for some, and SB 827 ultimately failed to even make it out of committee.

Undeterred, Sen. Wiener sponsored Senate Bill 50 this year, an ambitious bill intended to facilitate denser housing near major transit and rail lines and in "job-rich" communities. Although it addressed many of the criticisms of SB 827 -- namely, displacement of existing residents -- the Senate Appropriations Committee made SB 50 a "two-year bill" on May 16, delaying a full vote on the contentious legislation until 2020 and significantly decreasing the odds of its passage.

From a narrow perspective, the defeat of SB 827 and the uncertainty facing SB 50 are somewhat deflating. Despite these well-intended laws, studies show that the state needs approximately 3.5 million more homes by the year 2025. The housing crisis is not going to be solved at the local level. Sweeping legislative change is vitally important, necessary and justified to strike a better balance between state and local control over land use, at least as it relates to housing development. The good news is that the Legislature clearly recognizes the effects of local zoning control on housing, significant state intervention is actively being considered, and two-thirds of California voters support bills like SB 50. Change is coming, particularly to those jurisdictions that refuse to comply with applicable law.