One Year Displaced

A year ago today, I woke up in a hotel in California. I’d driven there the night before after packing what remained of my belongings into my Miata and saying goodbye to my friends in Phoenix, where I’d lived for seven years. I left because an influx of priced-out Californians priced me out of Arizona. I no longer had a home.

Of course, I could have paid (28%) more to keep my apartment in Phoenix, and I afforded temporary homes in nice places anyway. Still, housing insecurity has become a common experience, especially (though not exclusively) for younger generations. And people need housing too much for things to stay this way forever.

Save Money, See Places

People have lives to live while construction can’t happen fast enough. When housing becomes unaffordable, people double up. I’m not the only one doing this, and I suspect it’ll become more common as housing prices remain high. Jane Jacobs noted this phenomenon in the 1920s and ‘30s in Dark Age Ahead (2004).

Throughout 2022 and into this spring, I hopscotched through a series of one-month rentals on Airbnb. The short-term rental giant’s rooms have undercut the housing market in much of the West. I lived in Eureka, Seattle, Lake Tahoe, Santa Barbara, San Luis Obispo, San Francisco, Los Angeles, Tucson, El Paso, Berkeley, and Sebastopol—all transiently cheaper than my former studio apartment in Phoenix. 

Now I live in Santa Cruz, improbably, with a partner who rents a basement from a couple who I’d guess have paid off their mortgage. There’s no way we could afford a market-rate home here, despite two well-paying jobs. The restaurants close at 8pm because so few workers can afford this city, and it’s rare to see children playing in silent neighborhoods of second homes. The weather is probably too nice for Santa Cruz to shrink forever, but it will take a long time for it to welcome working families again. People are likely to orchestrate micro solutions, as my newfound household has, before the government or the building industry can.

Horribly, most cities outside California restrict people from taking on housemates. That’s actually how the U.S. Supreme Court justifies single-family zoning. See Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974); but see City of Santa Barbara v. Adamson, 27 Cal.3d 123 (1980). YIMBY Law isn’t litigating this issue, yet. With that, let’s check in on our housing-element cases.

Housing-Element Litigation Update

Currently, we’re litigating against Burlingame, Cupertino, Fairfax, Palo Alto, and Sausalito on their housing elements. Of these, we have moved for judgment against Palo Alto and Cupertino. Different aspects of all five cases are still developing in court. We’ll share results as they come.

To our dismay, HCD certified Sausalito’s housing element. HCD’s certification has no bearing on our primary CEQA claim, which offers its own path to the builder’s remedy should we prevail. Certification simply means we’re litigating “against the standard” on our secondary housing-element claim. But that’s often what public-interest litigation is about; public-interest litigants prevailed against the standard last month. We remain unamused by the city’s shenanigans, and we intend to see this case through.

And Now for Something Completely a Little Bit Different

While we’re litigating housing in California state court, there’s an entire federal judiciary constantly wrestling with the whole universe of federal law. Part of that universe is the First Amendment.

In a case now before the Ninth Circuit, the state board of land surveyors has taken the position that drawing lines on satellite maps requires a land-surveying license. But of course, housing activists in California do that all the time. No one should need a license to comment on a housing element’s site inventory.

We’re pleased to share that the UCLA School of Law’s First Amendment Clinic has filed an amicus brief for Yes In My Back Yard in support of the case against the land-surveying board. Thank you to UCLA Law students Ian Levy, Katarina Rusinas, Asim Zaidi, and their Prof. Eugene Volokh, for authoring the brief. Here it is:

YIMBY Amicus in Crownholm v. Moore

Under the Sea

We sued Sausalito over its housing element yesterday. Lots of you have asked when YIMBY Law will challenge a “self-certified” housing element, so here it is!

Yes In My Back Yard v. City of Sausalito

We couldn’t wait for HCD’s noncompliance determination here because of a 35-day statute of limitations under CEQA. But we do anticipate that a lot of “self-certified” housing elements will get rejected in the coming weeks as well. We’re aware that adoption vs. certification vs. compliance can be confusing, so look for our explainer here around the new moon.

Housing Element League Table

Happy New Year. The statutory deadline for Bay Area (and Santa Barbara County) jurisdictions to adopt a compliant housing element is January 31 (February 15). Most of them won’t.

There’s an emoji legend and some words at the end. But first, here’s what you’re looking for:

Alameda County

Contra Costa County

  • Contra Costa County: first draft not yet submitted to HCD 🏘️

  • Walnut Creek: rejected 12/5 ("many"); PC to recommend adoption 1/12; CC to adopt 1/17 😏

  • San Ramon: rejected 10/18 ("many"); revised draft submitted 12/29

  • Concord: rejected 11/14 ("many"); CC to consider 1/10; adoption plan unclear

  • Richmond: first draft submitted 12/9 (+90d = 3/9); PC recommended adoption 1/5 🤡

  • Antioch: rejected 9/29 ("many"); PC recommended adoption 1/4; adoption date TBA

  • Danville: rejected 11/10 ("many"); PC recommended adoption 12/13; TC to adopt 1/17 😏

  • Lafayette: rejected 9/29 ("many"); PC recommended adoption 1/3; adoption date TBA

  • Pittsburg: 🤡

  • Pleasant Hill: first draft submitted 12/27 🏘️

  • Brentwood: first draft submitted 10/17

  • El Cerrito: rejected 12/12 (unk.); adoption date TBA

  • Orinda: rejected 8/12 ("many"); revised draft submitted 11/16; revised revised draft published 1/5; adoption date TBA

  • Martinez: 🤡

  • Moraga: rejected 11/10 ("many"); PC to recommend adoption 1/10 😏

  • Oakley: rejected 11/29 (unk.); adoption date TBA

  • Hercules: rejected (unk.); revised draft submitted 1/5; adoption date TBA

  • San Pablo: rejected 12/27 (unk.); adoption date TBA

  • Clayton: rejected 10/12 ("many"); PC recommended adoption 12/13; CC to adopt 1/17 😏

  • Pinole: first draft submitted 12/2; CC to adopt in Apr./May 🏘️

Marin County

Napa County

San Francisco

  • San Francisco: PC recommended adoption 12/15; BOS to adopt in January

San Mateo County

Santa Barbara County (deadline = 2/15)

Santa Clara County

Solano County

Sonoma County

Emoji legend:

  • 🥳 = adopted and in compliance

  • 😉 = doing fine

  • 😏 = adopting with problems

  • 😱 = is HCD really gonna certify this?

  • 🏘️ = can’t, or doesn’t plan to, adopt before the statutory deadline

  • 🤡 = hasn’t published a draft, or is violating statutory procedure

In its review letters, HCD distinguishes between draft housing elements that address “many” vs. “most” statutory requirements. A “many” letter means the draft needs substantial improvement. A “most” letter means the draft is close to substantial compliance. 

Most of the time, we agree with HCD. But substantial compliance is a question of law. That’s how we can sue Redondo Beach, despite HCD’s certification. We think HCD got Redondo Beach’s certification wrong.

Your seasonally depressed correspondent will have more thoughts next week.


Busy Week

Last week I took a bye; this week I’ll show you why.

What Does It Mean to Be “Prohousing”?

Though our main mission is suing cities that block housing, we think the future is bright for cities that embrace it. One lesser-noticed component of housing-element law is the prohousing designation program, in which HCD has statutory authority to set the criteria by which cities are given bonus points for certain grant programs. As of December 15, 2022, the cities of Citrus Heights, Fontana, Oakland, Roseville, Sacramento, San Diego, and West Sacramento have been awarded this honor.

Anyone priced out today can tell you we need dramatic change to fix the housing crisis. HCD is considering changes to the prohousing designation program, and we think it’s a great opportunity to entice prohousing cities to lead the way. See our letter below.

 An “Alternative to Litigation” for the Builder’s Remedy

As we’ve written, dozens of Bay Area cities will be subject to the builder’s remedy starting in February. Last week, YIMBY Law worked with Californians for Homeownership and the California Housing Defense Fund (until recently CaRLA, of CaRLA v. San Mateo fame) to send demand letters out to these cities.

One way not to get sued is to agree that you’re subject to the law. Read our letter to Palo Alto—we sent the same letter everywhere—below.

Huntington Beach, You Can’t Exempt Yourself From state law!

I’m finishing up this post as the City Council of Huntington Beach is authorizing its city attorney to get Big Mad about the builder’s remedy. 13,000 new homes is too much, they say, and they want the State to “prove” that there’s a housing shortage. (Hey, Huntington Beach: I got priced out of Phoenix because of coastal California’s housing shenanigans. Now I live in a succession of sheds and spare bedrooms and have to move every month, and I’m Big Mad too. Go ahead, I’ll wait. I’ll still be here when you’re ready to be sued.)

Anyway, Huntington Beach can’t just declare itself immune from the law. I’m tired of thinking about this, so here’s the letter I wrote. Enjoy: