Mcle Self-study Article: the Housing Accountability Act: Recent Improvements and Success
| Publication year | 2021 |
| Author | Matt Gelfand |
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Matt Gelfand
Matt Gelfand is Counsel at Californians for Homeownership, a 501(c)(3) nonprofit organization founded by the California Association of REALTORS®. The organization works to address California's housing crisis through impact litigation in support of the development of and access to housing for all Californians. Previously, Matt was a litigator in private practice at McKool Smith Hennigan, P.C.
Housing is scarce in California. Although there are many measures for estimating the adequacy of a region's housing supply, the simplest is the number of housing units per capita. On average, the number of housing units needed to comfortably house a given population is similar across regions, yet the actual number of units per person varies significantly from region to region. California ranks forty-ninth out of the fifty states on this metric.1
As a result of the housing crisis, many Californians are being denied opportunities for housing security and homeownership that were afforded to previous generations. Families across economic strata are being forced to rent rather than experience the wealth-building benefits of homeownership.2 Many middle- and lower-income families devote more than half of their take-home pay to rent, leaving little money to pay for transportation, food, healthcare, and other necessities.3 Unable to set aside money for savings, these families are also at risk of losing their housing in the event of a personal financial setback. Indeed, housing insecurity in California has exacerbated the state's homelessness crisis.4
Beyond the human toll, California's housing crisis harms the environment. "[W]hen Californians seeking affordable housing are forced to drive longer distances to work, an increased amount of greenhouse gases and other pollutants is released and puts in jeopardy the achievement of the state's climate goals."5
In recent years, the California Legislature has sought to address the state's historic housing supply and affordability crisis, observing that
[t]he 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. While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor.6
At the core of California's affordable housing crisis is a failure to build enough housing to meet demand. The Legislature has recognized that this lack of supply is driven, in part, "by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing."7
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In California, land use decisions are primarily made by local elected officials in California's 540 separate cities and counties (collectively, "local governments"). These officials are elected by their current residents, not the people who might become residents if new housing is built. Existing residents often fear that new residents will overtax schools, roads, parks, and other aspects of local infrastructure. Existing residents may also worry about the direct impacts of a new housing development on their privacy, access to light, traffic, and the like—an attitude called NIMBYism.8 It is no surprise, then, that local elected officials may, for these and other reasons, work to limit new housing development, even in the face of widely-acknowledged regional housing needs. Put simply, because housing needs are regional but housing approvals are local, housing does not get built.
How does this work in practice? Local governments have several tools available to keep housing at bay:
First, they can limit development through zoning. The vast majority of California's residentially-zoned land allows for single-family residential use only.9 Because much of this land is already developed as single-family housing, a large swath of the state is not available for additional housing. Where multifamily zoning is allowed, housing is constrained by rules such as density limits, height limits, restrictions on floor area ratio (FAR), and minimum parking requirements.
Even when the zoning is adequate initially, the beneficiaries of one wave of housing production may work to limit the next wave through downzoning. For example, in 1960, zoning in the City of Los Angeles would have allowed the development of housing sufficient to support a population of ten million residents. In the three decades that followed, the City reduced its zoned capacity by approximately 60% through downzoning, to around four million. Today, the City's population is nearly at its zoned capacity, with almost no room for population growth—be it from childbirth or in-migration.10
Second, when a specific zoning-compliant project comes up for a decision, local elected officials can nevertheless deny the entitlements or permits necessary to build. Often, this comes in the form of a rejection based on a subjective criterion in the general plan or zoning standards, such as "neighborhood character." These subjective criteria allow local decision-makers to retain a veto over specific projects, even after a particular site has been zoned for the development of housing. Other times, projects are rejected arbitrarily or with explanations that do not have a meaningful connection to any local development standard. Either way, these rejections usually result from resident opposition at public meetings.
Third, local governments can design their application procedures to be so long, onerous, costly, and uncertain that developers simply choose to develop elsewhere.
B. The Legislature's Three-Part System for Addressing the Housing CrisisCalifornia's housing crisis has been building for decades, and the Legislature has been working to address it since the 1980s. Over time, the Legislature has developed a three-part approach that requires cities to plan for adequate housing, holds them accountable to those plans, and streamlines certain forms of development.
The centerpiece of housing planning in California is the Regional Housing Needs Allocation ("RHNA") and Housing Element system. The RHNA system is a process for assessing and allocating housing targets on a periodic basis, generally every eight years.11 It starts with an assessment of housing needs by the California Department of Housing and Community Development ("HCD"). HCD allocates the state's anticipated housing needs on a region-by-region basis, at different levels of affordability, based on established criteria.12 This need is then allocated to individual local governments by regional councils of governments.13
Once the allocations are established, each local government is tasked with developing an action plan (the Housing Element) to ensure that the local government's land use policies enable the production of enough housing to meet its RHNA goals.14 The Housing Element must provide an inventory of sites available for residential development and assess constraints and market realities that affect the likely development activity at those sites, including local land use regulations.15 Local governments must make changes to their land use rules, including by rezoning, if needed to accommodate housing sufficient to meet their RHNA goals.16
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Even when they have appropriately planned for housing, local governments can stymie residential development using long and onerous approval processes; for example, by conducting a slow-moving and expensive review process under the California Environmental Quality Act ("CEQA"). State streamlining laws like Senate Bill 35 (SB 35)17 address this problem by considering the practical effect of local land use rules on the development of housing; when a local government's policies have not produced enough housing to meet its RHNA goals, developers of mixed-income housing projects are entitled to apply for streamlined approvals under SB 35. To qualify under SB 35, a development must comply with all a city's objective development standards, provide a state-specified minimum percentage of units as affordable housing at state-specified levels of affordability, and agree to certain construction worker pay conditions, among other criteria.18 Development applications that qualify under SB 35 must be approved as ministerial acts, and therefore without review under CEQA, drastically shortening the development review process.19
The planning work done during the RHNA and Housing Element process requirements is meaningless unless the standards developed during the process are enforced and local governments are prevented from engaging in project-specific vetoes based solely or primarily on public opposition. That is why the Legislature adopted the Housing Accountability Act ("HAA"), the primary subject of this article.
C. The Housing Accountability ActAs part of its efforts to address the housing crisis in the 1980s, the Legislature passed the Housing Accountability Act or "HAA" (often called the "anti-NIMBY law"), which limits the ability of local governments to reject proposed housing development projects.20 In recent years, the Legislature has strengthened the HAA several times.
Local governments are required to follow their own laws for all types of land use approvals. An unlawful denial of a permit can be challenged in...
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