LAND USE--I recently attended UCLA Extension’s 2018 Land Use Law and Planning Conference at the Biltmore Hotel in downtown Los Angeles. Seated in long rows of tables under the glittering chandeliers of the hotel’s Crystal Ballroom, hundreds of elected and appointed public officials, developers, attorneys, and consultants are annually briefed by sharp pro-growth land-use lawyers and other like-minded experts on the latest California land-use legislation and case law.
This year the star of the show was State Senator Scott Wiener. He earned that role by authoring SB 35, the controversial “by-right” housing bill that Governor Brown signed into law in September. Like his fellow Yimbys, Wiener believes in a supply-side, build-baby-build solution to California’s housing woes and blames those woes on local jurisdictions’ resistance to new residential development. He presents himself as a brave policymaker who grapples with hard issues that others have dodged—an image belied by his evasive responses to my questions.
In California, Wiener told the conferees, “housing has been a purely local thing.” There have been “few laws on the books,” those that are on the books “are not enforced” and are outdated. What needs to happen, he said, is that the state should govern housing the way it governs education. Local school boards “set policy,” but “the state sets the ground rules.” Just so, last February the senator told Streetsblog, “if you [a city] are meeting your RHNA [Regional Housing Needs Allocation, set by the state’s Department of Housing and Community Development] goals…you maintain full local control.”
This strains to the breaking point any reasonable definition of local control, which, moreover, the Legislature has been chopping away for years. For starters, see SB 375, which spawned Plan Bay Area; SB 743, which eliminated local congestion as an environmental impact; and, in last year’s “housing package,” SB 35, SB 167 and AB 1515. On January 3, Wiener introduced two new bills, SB 827 and SB 828, that move beyond chopping into slash-and-burn territory.
Drafted by California Yimby Executive Director Brian Hanlon, and coauthored by State Senator Nancy Skinner (D-Berkeley) and Assemblymember Phil Ting (D-San Francisco), SB 827 would prohibit cities from limiting heights to lower than 45 feet (five stories) or 85 feet (eight stories)—depending on the width of the street—on parcels within a half-mile of a “major transit stop” or a quarter-mile of “a high-quality transit corridor.” For such parcels, SB 827 would also suspend local parking minimums, density restrictions, and “any design standard that restricts the applicant’s ability to construct the maximum number of units consistent with any applicable building code.”
The bill defines a major transit stop as “a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.” The California Government Code defines “a high transit corridor” as “a corridor with fixed route bus service that has service intervals of no more than 15 minutes during peak commute hours.”
Wiener’s companion bill, SB 828, would exponentially increase both cities’ Regional Housing Needs Allocations (RHNAs) and state authority over local land use planning. I’m going to review the bill in wonky detail, because though SB 827 has gotten the lion’s share of publicity, support, and pushback, SB 828 is likely to have at least as much impact.
Every eight years, the California Department of Housing and Community Development determines how much housing at various income levels will be needed to accommodate each region’s forecasted population. The region’s council of governments—in the Bay Area, the Association of Bay Area Governments—divvies up this number among its local jurisdictions, who must then plan and zone accordingly.
Wiener and other agents of the California growth machine have long complained that the RHNAs have “no teeth,” that the state lacks the legal authority to force cities to approve housing commensurate with their allocations. The senator marketed SB 35 as a first step toward providing such dentures; the new law ties by-right approval—no public hearing or environmental review—of certain infill housing projects to a city’s RHNA shortfalls. SB 828 would further strengthen Sacramento’s bite.
According to the SB 828 summary from Wiener’s office, the RHNAs have the following problems:
- “The state’s historic population forecasts do not take into account historic underproduction of housing.”
“As communities stifle housing construction locally, their population is limited by how many new homes are built, creating the illusion that population growth is slowing or stagnant. This illusion is prevalent even in areas that have thriving job markets and skyrocketing housing demand and prices.”
- “No rollover mechanism” ensures that “communities who underperform in one cycle are held accountable to their remaining obligation when the next cycle starts, creating a perverse incentive for cities to routinely underperform on RHNA.”
The upshot: cities’ “population growth will slow, their previous obligations will be forgiven, and their allocations will be reduced.”
- RHNA methodology varies from region to region, with little state oversight, resulting in “heavily politicized allocations that are divorced from the data about true housing demand and fair share principles.”
For example, in the current cycle, three “adjacent and demographically similar coastal communities” in Los Angeles were awarded highly disparate RHNAs: Redondo Beach, got 1397 units, Manhattan Beach got 37, and Hermosa Beach got two. At the conference, Wiener cited these numbers and said that wealthier communities get lower allocations.
(The choice of jurisdictions is a bit strange, given that the Southern California Association of Bay Governments, whose purview includes the three coastal cities, embraces the build-baby-build agenda. Indeed, last fall SCAG produced a seven-minute video, “The Bay Area: A Cautionary Tale,” in which Yimby Action Executive Director Laura Foote Clark and other Bay Area growth evangelists, backed by a mournful Philip Glass-like score, sermonize about their region’s failure to produce sufficient market-rate housing to support the burgeoning tech economy.)
Cities “are expected to zone for precisely 100% of projected growth,” an “underwhelming requirement that sets communities up for failure in housing production, as not every newly zoned parcel will have a development application completed and project constructed to its full capacity within several years.”
To address these issues, SB 828 would
- Require HCD to do “a one-time unmet need assessment for every California region before the next housing cycle, and then add those numbers to the forecasted allocations”
- Establish “methodologies that acknowledge the particular need for moderate and above-moderate income housing in areas where housing prices are increasing at a rate far faster than wages.”
- Authorize HCD “to challenge inequitable allocations between comparable jurisdictions.”
- Require HCD “to rollover jurisdiction-specific underproduction from the last cycle to the next if a city has underperformed and not met their [sic] RHNA.”
- Prohibit “regional planners from purposely underallocating in cities that they know are underperformers and will have rollover numbers.”
- Require the “Housing Elements” in cities’ General Plans “to zone for 200% of their housing obligation every cycle—not 100%.”
Wiener dodges my questions
Wiener’s panel was followed by a short Q&A. I got to ask the last question—or more precisely, questions, for I had two. The first dealt with the unfunded mandates that Sacramento keeps imposing on local jurisdictions. SB 827 and SB 828 would dramatically increase cities’ populations and hence the demand for services—police, fire, sewerage, water, parks, schools, and transit—without providing funds to pay for the new services.
I didn’t have time to point out that SB 827’s concluding paragraph specifically lets the state off the hook:
SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.
But I did cite Wiener’s fellow panelist, attorney Barbara Kautz. Another supply-side devotee, Kautz dutifully recited the growther catechism, asserting that the California Environmental Quality Act is being misused by opponents of development, that project approvals take way too long, and so forth.
But Kautz also displayed flashes of objectivity: her PowerPointed inventory of barriers to new housing included a list with the heading “NO FISCAL BENEFITS”:
- Not enough $$ to pay for school expansion
- Perceived as a fiscal loser
- No state $$ for infrastructure
- No state $$ for planning (until SB 2 passed last year)
- Loss of RDA [Redevelopment Authority] $$ without replacement
At the mic, I pointed out that while growth resisters are called racists, elitists, and reactionaries, Kautz had identified “objective” factors behind such resistance.
In reply, Wiener first conceded that when it comes to services, “we have lot of challenges.” He mentioned in passing Prop. 13 but notably did not state his support for a split roll. Nor did he refer to any of the items on Kautz’s list. Mainly, he dismissed my question as irrational and uninformed.
On the first charge: some people, he claimed, say “until we fix everything all at once, don’t fix everything at once, and we should fix housing.” But under the pretext of fixing housing, SB 827 and SB 828 would worsen a huge existing problem: California cities lack the money to serve the populations they already have.
On the misinformed count, Wiener asserted that “housing does not bring people in….People come here whether or not we build housing. Don’t build it, and they’re going to come anyway,” leading to soaring rents and overcrowding.
This is partly true: people come to California for jobs. But a major source of both current housing unaffordability in the Bay Area and the region’s growing wealth gap is the influx of hundreds of thousands of highly-compensated tech workers. If policymakers were serious about lowering housing prices (and undoing gridlock), they’d stop approving new mega-office projects. Problem: Wiener and California Yimby are generously funded by the tech industry. More than 100 tech executives have signed a letter supporting SB 827.
My other question addressed housing equity. SB 827 would inflate real estate values by encouraging massive new development in so-called “transit-rich” neighborhoods. In major cities, many such neighborhoods are home to low-income people of color. Some of the most vehement opposition to the bill has come from community leaders who view it as an engine of gentrification and displacement. In a blistering manifesto issued days after Wiener introduced the bill, Crenshaw Subway Coalition Executive Director Damien Goodmon called SB 827 “a declaration of war on South LA” that “must be killed.” Berkeley Mayor Jesse Arreguín subsequently reiterated that sentiment.
As initially drafted, SB 827 contains no provisions against displacement or demolition. There was no point, however, in asking about such provisions, because in a Medium piece posted on January 16, Wiener said that such provisions would be added.
Instead, I queried him about support for repealing the Costa Hawkins Rental Housing Act, the 1995 law that allows rent-controlled units to be leased at market rates when a tenant moves out. “You wrote on Medium that under SB 827, ‘if a city has rent control, it will continue to have rent control,’” I said. “But Costa-Hawkins’ vacancy de-control makes rent control—if not a dead letter, then a very weak one. Please comment.”
Wiener began by stating that he’s been “very public about supporting repeal” of Costa- Hawkins. Then he attacked AIDS Healthcare Foundation President Michael Weinstein, who’s providing major funding for an initiative to put repeal on the California ballot in November. This, said, Wiener, is “just another losing ballot measure” supported by the same people who ran Measure S, the Los Angeles slow-growth initiative that was defeated last March. During the post-panel break, I followed Wiener into an adjacent room and asked again about Costa-Hawkins. He said he’d like “to bring everyone to the table” to work out legislation that would allow “new apartments to transition over time into rent-controlled affordable housing.” When I pressed him on the content of the initiative, he launched another personal attack on Weinstein: “He loses everything. Weinstein will set Costa-Hawkins reform back” by “driv[ing] it into ground.” But that is a discussion about political strategy, not about the issue.
SB 828 would make RHNAs even more unfair
If I’d had time, I would have specifically asked about SB 828. I agree that the Regional Housing Needs Allocations are arbitrary. But by pegging housing RHNAs to doubled forecasted population growth and above all to high-end residential construction, SB 828 would make them even more so. To claim, as the draft bill does, that Median rent or home prices that exceed median income will be alleviated by rapidly increasing housing supply for moderate and above-moderate income households.
Communities with high rates of income growth must also have a high rate of new housing production for households of all income levels to ensure equity and stabilize home price and communities.
is to ignore market realities. Rapidly increasing the supply of high-end housing will ensure inequity and destabilize housing prices and communities.
Moreover, the overview of SB 828 put out by Wiener’s office undercuts the claim that local approval or disapproval is the major factor in housing production. That document accurately observes that “not every newly zoned parcel will have a development application completed and project constructed to its full capacity within several years.” Translation: housing is built by developers, not cities, and even when their projects have been approved, developers, not cities, decide if and when to pull a building permit, and if and when to build. And as Wiener doubtless knows, just about the only housing that developers are building is housing for the high end, because that’s the only kind that pencils out for their investors.
Finally, if the Legislature really wants the RHNAs to foster equity and stabilize housing prices, it should start by eliminating the requirement that each city must allocate
a lower proportion of housing need to an income category when a jurisdiction already has a disproportionately high share of households in that income category, as compared to the countywide distribution of households in that category from the most recent decennial United States census. [CA Government Code Section 65584 (d)(4)]
As Berkeley Housing Advisory Commissioner Tom Lord has explained, this is a pro-gentrification, pro-displacement policy in a city such as Berkeley, where the percentage of low-income residents is higher than the countywide percentage. The state’s RHNA policy requires Berkeley to zone for more affluent residents, even as the current red-hot market is displacing low-income Berkeleyans. “In the short term,” Lord point out, “the RHNA demands that the most affordable parts of the [Bay Area] become less affordable.” How about fixing that?
This year is different
When he drafted SB 827 and SB 828, Wiener did not bring everyone to the table. At the Biltmore, he expressed the same contempt for local democracy that he voiced at the Yimby national conference in Oakland in July. Once again, he said that colleagues in Sacramento privately thanked him for authoring SB 35, whose draconian measures would be anathema to their constituents (had they known about them).
The stealth approach worked in 2017. The cities didn’t wake up to the threats posed by SB 35 until much too late in the legislative season to make a difference. Other than tenants’ rights and affordable housing advocates in the state, who mounted the major opposition to the bill, the grass-roots barely stirred.
This year is already different. Vigorous local opposition to SB 827 is flaring from social equity advocates and others, and some power players have come out against the bill. The Sierra Club California formally opposed SB 35 but, cowed by the Yimby lobby, did little more than state its opposition on the club website. On January 18, the club sent Wiener a letter asking him to withdraw SB 827. And, remarkably, on January 23, the Los Angeles Times Editorial Board registered its objections to the bill.
On the other hand, the San Francisco Chronicle welcomed the legislation, noting that in an interview Wiener had “acknowledged” that SB 827 is “’an aggressive bill for sure” whose draft “’is unlikely to be its final form.’” Does this mean that he and California Yimby are going to put out something outrageous, tweak it to something slightly less outrageous, and then declare, “we’ve compromised?”
We’ll soon find out. SB 827 and SB 828 will have their first hearings soon. They should be lively.
(Zelda Bronstein, a journalist and a former chair of the Berkeley Planning Commission, writes about politics and culture in the Bay Area and beyond. She is an occasional contributor to CityWactch.)