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News + PoliticsHousingSPUR, Yimbys say stealth state laws can force more housing

SPUR, Yimbys say stealth state laws can force more housing

But what happens if developers don't want to build anything but luxury condos -- and maybe not even those?


On Friday, February 12, SPUR hosted a webinar entitled “Can Cities Use State Law to Overcome Housing Resistance?” The four panelists, all of the Yimby/Wiener persuasion, answered that question with a resounding Yes.

To anyone who’s depended on the mainstream media for an understanding of the current battle over California housing policy, that response must to be mind-boggling. The establishment press has claimed ad nauseam that the state has done little if anything to address California’s housing crisis.

Is HCD the new CIA?

Reporters have repeatedly memorialized the defeats of state Sen. Scott Wiener’s SB 827 (d. 2018) and SB 50 (d. 2019 and again in 2020) and the midnight-hour death of Assemblymember Toni Atkins’ SB 1120 in 2020, leaving the impression that these were the only housing bills or at least the only ones that mattered.

At Friday’s forum, the panelists told a different story. Since 2017, the state Legislature has enacted a slew of housing laws that, as former director of the Department of Housing and Community Development Ben Metcalf put it, “buil[t] out the power of the state” to overrule local land-use authority.

Now the managing director of the Terner Center for Housing Innovation at UC Berkeley, Metcalf exulted that, thanks to the new legislation, “HCD has the potential to be moving much like the CIA. Most of the time its [work] is done below the waterline.”

As an example of such covert pressure, he cited 250 formal letters that HCD recently sent to California that noted violations of state law and concluded with a reference to the agency’s newfound legal authority to intervene in municipal planning.

Metcalf also applauded Newsom’s proposed creation of a Housing Accountability Unit. Announcing the HAU in January, Newsom said:

“This is to monitor city council meetings. This is to monitor board of supervisor meetings, planning commission meetings. We’re not going to wait for an article to be written to be proactive in terms of holding local government accountable to increasing housing production.”

Metcalf called the proposal “exciting” and said that the HAU would be staffed by twelve new attorneys, including one at the top who would hold “a senior level post” at “the highest rank in civil service.”

Panelist Chris Elmendorf, a UC Davis law professor, encouraged local officials to collaborate with HCD by turning in their own cities—in his words, to “signal to HCD that [their city’s’] Housing Element was not adequately addressing” the jurisdiction’s legal mandate to plan for its fair share of its region’s housing. “Local knowledge,” said Elmendorf, “puts the substantive bite in state law.”

Yimby Law staffer and Seaside councilmember Jon Wizard gave the surveillance theme a more inclusive spin. (Yimby Law is the outfit that Sonja Trauss started in November 2019 after mysteriously departing from the California Renters and Legal Education Fund, which she’d co-founded.) As one of Yimby Law’s two Housing Element coordinators, Wizard trains and supervises volunteer cadres who assist HCD by reporting municipalities’ actual and prospective evasions of state housing law.

Moira O’Neill, a senior research fellow at UC Berkeley’s Center for Law, Energy, and the Environment, presented a PowerPoint review of research into “how cities process and approve housing.” She and her colleagues studied how in 2014-2017 sixteen California cities, including San Francisco, Oakland, San Jose, and Los Angeles, processed and approved housing for zoning- and plan-compliant projects of five or more units.

What delayed approvals, O’Neill said, was discretionary review. In response to my emailed query as to what she meant by that term, O’Neil cited design or architectural review. Her point resonated with her fellow panelists’ hostility toward democratic land use planning, which typically involves public hearings and other community-based forms of consultation, and their celebration of new state laws curtailing local discretion.

The discussion was framed by Elmendorf’s PowerPointed-overview of “what’s different this time.” He marked five factors:

“(Much) Bigger Housing Targets for Expensive Places”

Thanks to SB 828 (Wiener) and AB 1771 (Bloom), HCD has been able to impose exponentially larger Regional Housing Needs Allocations (RHNAs—pronounced ree-nuhs) on local jurisdictions. Since 1970, state law has required the Housing Element of each city’s general plan to include zoning that accommodates a portion of regional population growth. The latest RHNAs, Elmendorf observed, set “much bigger housing targets for expensive places.” The targets for Los Angeles and San Francisco, for example, are two-to-three times larger than the prior allocations.

“Realism About ‘Realistic’ Site Capacity”

AB 1397 (Low) and SB 6 (Beall) require Housing Elements to estimate the “realistic site capacity” for development. Previously, Elmendorf said, there was “no attention to the likelihood of a site being developed.” In the Q&A sidebar, I asked how a realistic likelihood of development can be determined. Wizard referred me to HCD’s site inventory guidebook. If any readers of this story can make or head or tail of that guidance, please share your insights. I pity the planners who have to follow its dictates. In the meeting proper, Wizard said that he’d “yet to see a single Housing Element that calculates the likelihood that a site will be developed.” I’m not surprised.

“A Duty to Affirmatively Further Fair Housing [AFFH]”

Mandated by AB 686 (Low), the “basic idea,” Elmendorf said, is that “sites zoned for low-income housing shouldn’t be concentrated in poor, historically disadvantaged areas of the city. Rather they should also be distributed in areas of opportunity.”

“A Duty to Approve Plan- and Zoning-Compliant Projects”

SB 167 (Skinner) and AB 1515 (Daly) amended California’s Housing Accountability Act, making it much harder for a city to reject a housing project or to reduce its density. Under SB 35 (Wiener), a town that’s failed to issue permits commensurate with its RHNA allocation loses its discretionary authority, meaning it has to approve projects without public hearings and environmental review.

With respect to SB 35, the Davis law professor’s heading is misleading. SB 35 is triggered by the issuance of permits, not approvals. But a city cannot require a developer whose project has been approved to pull a permit to build that project. Moreover, RHNAs encompass housing at all income levels, but developers are famously unwilling to build low-income housing, and cities cannot force them to abandon that reluctance. In other words, SB 35 sets up cities to fail, which is to say, to lose their land use discretion. Metcalf claimed that SB 35 is the thing [developers] are looking for. If it doesn’t apply, they look for another site.”

The last item on Elmendorf’s list of novelties was “Yimby watchdogging.” As he told it, “a new set of interest groups…are involved in the process from the ground up.” (Yes they are—and showered with money from the top down.) Their activism takes the pressure off housing developers, who are afraid of “poisoning the well”—that is, antagonizing cities from whom they’re seeking approval of their projects. Now the Yimbys—and HCD—can do the dirty work for them. To Elmendorf’s legislative catalog, Metcalf added AB 72 (Chiu), which authorized HCD to enforce state housing laws and to refer violations to the state Attorney General.

The upshot of these legal and political changes, Elmendorf conjectured, is that “the Housing Element update will be the single best opportunity for pro-housing reform at the city level for the next decade.”

This statement, too, calls for annotation. What Elmendorf and his comrades seek above all is not housing, and certainly not affordable housing, but rather the elimination of constraints on property capital. Their essential motive spurted out after another Zoomer, Michael Barnes, who was just termed off the Albany City Council, posed a question to Wizard in the Q&A sidebar. The Yimby Law staffer had observed that “not every site” that cities designate for development “gets activated.” Barnes asked:

“If developers are not building, why would throwing more approvals at them make them start to build? Have you spoken with any developers lately? We’re in the middle of a pandemic. Apartment rents are falling. Single family home prices are rising. Developers follow the market. How would you change that?”

Barnes’ question was predicated on the accurate perception that what drives real estate production is demand – and thus return on investment capital. Yimbys like to talk about developers, but not about how the real estate market really works. Witness Wizard’s reply:

“With the structure of the economy, nothing can ever make a private person/company build housing. Our goal is to remove arbitrary constraints, as Professor O’Neill described, so that development becomes more feasible and frequent. If the development community believes a once-Nimby city or county is less so, or even, dare I say, pro-housing, we expect the market to seek profits there.”

So, as Barnes subsequently observed to me in an email, this is really about “creating a free-fire zone” for the real estate industry. That the removal of legal constraints on the industry will result in “housing for everyone” remains unproven.

The “pro-housing” badge is also a cover for another less salable goal: a vision of infinite growth. As Wizard put it in the sidebar: “No city is built out. Everyone can go up.” Interestingly, Wizard didn’t mention that Yimby Law, together with Yimby Action, is suing HCD because it thinks that the huge new RHNAs are much too small. His silence may have betokened a desire not to cue Elmendorf’s recently tweeted criticism of the suit: “right on the merits, maybe (probably) wrong on justiciability.” In plain English: it’s unclear whether anyone has the legal right to sue over RHNAs. (For Elmendorf’s fuller consideration of the matter, see his February 7 article in The California Planning and Development Report.)

Elmendorf questions only the legality of the Yimby suit. Like the other panelists, he fantasizes endlessly expanding growth. Nobody at the SPUR webinar mentioned any of the real-world threats to that fantasy: the requisite amount of schools, parks, water, sewage, police, fire, and, the space-defying potential of densification notwithstanding, land.

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  1. gorn,

    In 1980, SF had a population of 679K.
    Today, SF has a population of 882K.

    In the intervening years — due to an onslaught of NIMBY-driven anti-housing policies — SF averaged a little over 2K new housing units per year — including the most recent (so-called) “building boom”.

    Accordingly, population growth has far outpaced housing growth, and that is why we continue to have a (chronic) housing shortage — and why any crapping dingbat house in the Sunset now costs over $1.5 Million (and climbing.)

  2. I always enjoy how YIMBY profess to support “growth,” but don’t seem to realize that the economy is anything but stable over time, that capitalism operates under fits and starts and can never grow unconstrained.

    San Francisco saw an increase in population and jobs over the past decade. But as the undertow of the downside of the business cycle had led to population declines in 1989, 2001, 2008, so has covid called the question on the business cycle earlier.

    Growth happens over the long term, not within the upside of any given business cycle or any particular upzoning. Building more housing for more housing’s sake is not growth.

  3. Thanks for bringing me and other pro-housing citizens up to date on all the good work that the YIMBY movement — in concert with those state legislators that are true progressives — is doing in order to create more housing!

  4. dlooman, No, what I said is that there were very few market-rate new-build condo’s for sale in SF in the area I was looking. Sure there was some vacant older buildings but the point was that I wanted new-build. And back then there was little of that in the zip codes I targeted. Only lofts which I didn’t want.

    But I did ultimately get what I wanted. I tripled my money on that old building, which enabled me to pay cash for a new-build place when they finally became available. And the problem with Zelda’s NIMBYism is that she wants to go back to those days when newly arriving professionals had to outbid or evict existing residents in order to have a decent home.

    Why would a self-styled “progressive” advocate for more evictions in that way? Why can’t she see that we should be building homes for all price points and not just the ones that she is personally biased in favor of?

  5. One can say with reasonable assurance that Tom is a liar. There has never been a time in the last 30 years when there was a shortage in the housing market, when realtors had almost nothing or nothing to sell. In fact, most of the time over the last 30 years, there has been a glut on the market, and realtors have been offering deals and have been down on their knees begging people to buy.

    What Tom means is that he couldn’t find the house he wanted to buy. Sorry, Tom; you don’t always get what you want. That’s life, not housing policy. Builders weren’t building condos in the Mission in the mid-90’s because they didn’t see any money in it. That’s capitalism, not housing policy. The money was in those live/work lofts you didn’t want. That’s on you.

  6. “That was 6 tenants who lost their rent-controlled homes because of the policy…”

    Such concern for those six tenants—from the guy who evicted them. Actually, I don’t believe the tall tale. YIMBY & YIYBY trolls will say anything to defend runaway development. The lowest are the ones who feign sympathy for current tenants.

  7. tom, nobody can take anyone seriously who says that there was no residential inventory on the market in the mid 1990s in SF other than occupied units in multi unit buildings.

  8. gorn, Again I disagree. There was nothing to buy at the time I was buying other than occupied rental units.

    If instead the city has been doing what Zelda opposes, building new market-rate housing, I would have had an alternative.

    And surely everyone knows that rental housing is, by definition, temporary and insecure?

  9. tom: since you could not meet your desires, you decided to screw over existing residents in the City you just moved to. That’s sociopathic.

  10. gorn, nothing so melodramatic. I cane to SF for work and wanted to buy a modern home. But at the time (mid-1990s) very few were being built and so I was compelled to buy existing, controlled housing stock.

    It is not “sociopathic” to want to own your own home. It is sociopathic to want to stop others from doing that out of misguided ideological zeal.

  11. Since tom is a sociopath who has no compunctions screwing over other people for his comfort and convenience, we should assume that everyone is similarly ociopathic in that regard, and articulate public policy to accommodate the threats of sociopaths.

    Many long time San Francisco homeowners had their parcels upzoned in the 2000s yet few are champing at the bit to demo, build up and cash in.

    Yet newcomers celebrate their sociopathic practices because they hate San Franciscans as much as they hate our city.

    San Francisco’s quality of life is under threat by sociopathic libertarian capitalists.

  12. Zelda is wrong. If the better off have nice new homes to buy then they will not be bidding for older housing stock thereby driving up its price and motivating evictions.

    Case in point. 25 years ago I loved to SF for a 100K a year job. I wanted to buy a new build condo in the Mission but they did not exist back then, other than the odd new live/work loft which I did not want.

    So I bought a 4-unit building, did a couple of OMI’s (you could do more than one per building back then) and moved into the two vacant units.

    That was 6 tenants who lost their rent-controlled homes because of the policy that Zelda advocates. That’s right, because 25 years ago there were no new market-rate condos in the Mission. We tried that policy and it failed.

  13. I’m glad people are moving out. There were too many here already. We don’t need more housing. The South Bay does.

  14. Gorn,

    “out of his grasp) in this venue notwithstanding.”

    Very Shakespeare …

    Life as another ‘venue’.

    Whatcha figure’s next?


  15. Back to school w/Professor Bronstein,

    You must have a shelf of your work.

    My VA check arrives first of the month and I want to buy a ‘starter’, Bronstein.

    What should; I order?


  16. YIMBY are ruining San Francisco’s quality of life, not so much by any changes they’ve made to the built environment, rather the incessant blather on and on about mythological market solutions in which they veil their developer lobbying.

    YIMBY have been building power and capacity for the past five years while the progressive housing brain trust has been growing older, greyer and more domesticated in their ambition, Calvin Welch’s fantasizing about that elusive world (that for reasons unknown have remained out of his grasp) in this venue notwithstanding.

    On the progressive side, privatizing activism in the crappy nonprofits is death.

    On the conservative side, volunteering to promote private enterprise is a sacrament.

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