For better or worse, the acute, chronic lack of housing in the Golden State is once again the focus of attention. An analysis published recently by U.C. Berkeley’s Terner Center for Housing Innovation shows that restrictive local zoning has inhibited the development of high-density housing projects in California. This report concludes that, notwithstanding market pressures that would otherwise encourage the construction of apartments in areas with high land costs and housing demand, such as Silicon Valley, these municipal policies limit the amount of multi-family dwellings that are being built in our state.
Such data confirms the prevailing perception that our housing shortage is rooted in policies imposed at the local level. I have previously written in this blog about the plethora of laws being considered and passed by our state legislature in its efforts to address this crisis, including the adoption of SB 35, which requires jurisdictions that have not met their own general plan housing goals to speed up and restrict their discretionary review of housing projects. Unsurprisingly, there has been a great deal of local pushback against these state law impositions, as also noted in my blog.
In turn, as local governments have dragged their feet or openly dissented against these arrogations of their authority pursuant to these new state laws, they have been targeted with lawsuits brought under that legislation. For example, in my own hometown of Los Altos, a lawsuit was recently brought after the City Council denied a proposed five-story, 15-unit, mixed-use project based on their conclusion that it did not satisfy the conditions required to invoke the streamlined development approval processes of SB 35. While the owners of the property in question, Ted and Jerry Sorensen, had unsuccessfully (and controversially) sought approval to construct several different projects at this location since 2007, they were now looking to relief from the courts because this project had been designed specifically with SB 35 in mind and had satisfied the requirements of state law, according to the California Department of Housing and Community Development (“DHCD”).
For its part, the City of Los Altos has taken a definitive stand against the Sorensens here. “This project would result in a five-story building surrounded by two-story buildings, which goes against our General Plan and is completely out of character with our downtown aesthetic,” said Los Altos Mayor Lynette Lee Eng. In contrast, the California Renters Legal Advocacy and Education Fund (“CaRLA”), a four-person nonprofit organization that has been described as “a litigious nonprofit with YIMBY [yes in my back yard] roots” and that is pursuing this litigation on behalf of the Sorensens, has filed several lawsuits against other local cities challenging their housing restrictions in addition to this action against Los Altos. CaRLA’s founder, housing advocate Sonja Trauss, holds strong views about what actions are needed to remedy our state’s housing deficit. “Something, by hook or by crook, has to make these cities actually build housing,” argues Trauss.
In pursuing state law remedies against those cities it claims do not permit adequate housing to be built, CaRLA has relied upon both SB 35 and the lesser-known, recently-amended Housing Accountability Act of 1982 (“HCA”), which requires cities to employ objective standards in considering a proposed project. Despite these state laws (with the HCA having been in place nearly 40 years), many cities have skirted or ignored their requirements. In the instance of its denial of the Sorensens’ development proposal, the Los Altos City Council elected to disregard the DHCD’s opinion that this project met state law mandates, on the ground that City staff had not had time to consider it. All in all, CaRLA has aggressively pursued its agenda against many local governments, and has racked up quite a few victories in forcing cities to allow more housing to be built.
In addition to the efforts of CaRLA and other similar organizations, the state of California has also been taking action to compel local governments to comply with state law housing requirements. Earlier this year, the state filed suit against the City of Huntington Beach for its failure to provide for more housing development. The DHCD has also placed the City of Cupertino on notice that its denial of the housing component of the long-proposed redevelopment of the Vallco shopping mall site could violate state law. Following a similar notice, the City of San Bruno has indicated that it will reconsider its rejection of a 425-unit housing project.
This trend, however, will increasingly lead to more housing development decisions being made in the courtrooms of this state, and not the more traditional venues for these matters—the board and council chambers of California counties and cities. This trend is troubling to those who believe these decisions should be made in a more collaborative fashion in order to reflect the views of those affected by them. While court rulings on these clashes may help provide guidance to future policymakers, it is unclear whether this adversarial process will encourage more compromise, or more heel-digging.
