In countless editorials and news stories, the San Francisco Chronicle has championed state Sen. Scott Wiener’s claims that city Nimbyism is the major culprit in California’s housing crisis, and that his legislation has finally brought growth-resistant local governments to heel.
California cities, for their part, have argued that Wiener’s legislation penalizes them for something they can’t control: developers’ willingness to build.
Given the Chronicle’s anti-city line, it was surprising to find the cities’ complaint reinforced by an article the paper ran on July 5. To be sure, that corroboration appears at the very end of the story and doesn’t mention Wiener. Moreover, the headline—“These Bay Area suburbs are the furthest behind on their housing goals”—suggests that, as ever, cities are to blame.
The piece is a bit confusing, because it considers two related but different sorts of local housing goals set by the state. Reporter Olivia Borgula briefly discusses the requirement that cities’ general plans include a housing element that’s certified by the California Department of Housing and Community Development. Lack of certification triggers the “Builders Remedy,” which allows developers to do pretty much anything they want.
But Borgula’s main focus, and mine here as well, is on the state’s requirement that each city issue a certain of number housing permits or be forced to “streamline” (a euphemism for approval without a public hearing) certain housing projects. The required number of permits corresponds to each city’s “Regional Housing Need Allocation” or RHNA (sounds like ree-nuh).
The connection between the two sorts of goals is that each city’s housing element must accommodate the town’s RHNA.
As the Chronicle headline indicates, the number of permits issued by Bay Area cities is far short of their respective RHNAs. “Across the Bay Area,” Borgula writes, “cities permitted enough homes between 2023 and 2025 to reach just 14 percent of the region’s 441,000-unit target for 2031.” Many cities permitted far less. Brisbane, for example, came in at 1.3 percent; Walnut Creek at 4 percent; San Francisco at 7.4 percent.
These shortfalls, Borgula notes, reflect “the magnitude of the cities’ goals.” She really means: the recent, exponential increase in those goals. She continues: “San Francisco, for example, is targeting about 82,000 new homes by 2031, which is almost triple the number of units it aimed for last time.”
Behind the enormous RHNAs: Wiener’s bills
What Borgula doesn’t say is that Wiener’s legislation is a major source of the huge increase in cities’ RHNAs.
Start with his 2018 bill, SB 828. As I reported last November:
The basic framework of the Regional Housing Needs Allocations was established [in 1980] by AB 2853,….[which] stated:
It is recognized that the total housing needs…may exceed available resources and the community’s ability to satisfy this need…. Under these circumstances, the quantified objectives need not be identical to the identified existing housing needs, but should establish the maximum number of housing units that can be constructed, rehabilitated, and conserved over a five-year time frame. [California Government Code, Section 65583(b)(2)]
This was a major concession to both home rule and reality. It acknowledged that planning for housing and producing it are different things. Accordingly, the state qualified its expectation that housing production would equal each jurisdiction’s RHNA.
That qualification was eliminated in 2018 by Wiener’s SB 828. SB 828 erased the distinction between planning for housing and producing it,…amending the passage cited above so that it reads:
It is the intent of the Legislature that cities, counties, and cities and counties should undertake all necessary actions to encourage, promote, and facilitate the development of housing to accommodate the entire regional housing need, and reasonable actions should be taken by local and regional governments to ensure that future housing production meet, at a minimum, the regional housing need established for planning purposes. [California Government Code, Section 65584(a)(2)]
The decisive term is “meet.” To “encourage, promote, and facilitate the development of housing to accommodate the entire regional need” allowed for some wiggle room between a city’s RHNA and the actual amount of development. To “ensure that future housing production meet, at a minimum the regional housing need established for planning purposes” removed that latitude. SB 828 encoded in California law the assumption that planning determines production.
Just as importantly, Wiener’s bill stipulated that RHNA methodology address vacancy rates, overcrowding, and other factors in ways that wildly inflated the state’s housing targets.
Also unmentioned by Borgula are Wiener’s companion bills SB 35 (2017) and SB 423 (2023).
SB 35 tied a city’s failure to issue the number of housing permits commensurate with its RHNA to a harsh penalty: loss of discretion over the approval of infill, multifamily housing projects with various levels of official affordability.
SB 423
- extended SB 35’s applicability to 2036;
- enabled SB 35 to apply to a city without a compliant Housing Element, as determined by HCD;
- required staff, rather than any elected or appointed official, to make final decisions about approving or denying ministerial (no public hearing) projects;
- and expanded SB 35’s applicability to parts of the coastal zone.
SB 423 also required San Francisco, unlike other Bay Area jurisdictions, to file its housing production report annually, rather than every four years and not until 2027.
The Chronicle’s unexpected exposé
Borgula concludes by citing David Garcia, deputy director of policy at the state Legislature’s go-to consultancy, UC Berkeley’s Terner Center for Housing Innovation:
Garcia said the number of homes permitted in a city largely depends on the area’s economics, including construction costs and the availability of subsidies for low-income housing.
“A city can have a perfectly good housing element, perfectly good zoning, all geared toward getting housing built, but if the market is not really working for developers, then that stuff just doesn’t get built,” he said.
Given the Terner Center’s pro-developer agenda, it’s somewhat surprising that Garcia pointed up the dysfunctional, market-driven nature of the housing sector. But what with its UC Berkeley imprimatur, Terner has scholarly pretensions, and occasionally its staffers venture beyond hype.
One memorable example: At the February 2023 hearing presided over by Wiener and his fellow Yimby legislator, Assemblymember Buffy Wicks, Terner Center Director Ben Metcalf, who’s also a former director of HCD, stated: “Housing unaffordability remains high and housing production relatively stagnant”—an indiscretion for which he was soundly rebuked by Wiener.
Going further than Metcalf, Garcia tacitly undercut the major plank of Wiener’s housing platform, the notion that cities control the housing market. Cities can approve projects all they want, but it’s up to developers to pull building permits. These days they aren’t pulling very many for housing projects, because, thanks to interest rates, labor costs, and snarled supply chains, “the market isn’t really working for [them].”
I wonder if the conclusion to Borgula’s story slipped by the Chronicle’s editors on a holiday weekend, or if the paper will follow up and hammer the fact that Wiener’s claims are a con. We’ll soon find out.
Afterword: Thanks to my go-to RHNA consultant, Michael Barnes, for helping me grasp this complex body of law. For a deep dive into the RHNAs, see his analysis.
