The Housing-Element Review Review

Affordable housing is now legal in the Bay Area, and the sky has not fallen. We celebrate the zoning holiday to remind ourselves that for thousands of years, humans got along fine without zoning. Don’t we all have better things to do?

It’s the End of Zoning as We Know It

Last week, we filed some lawsuits to make cities legalize housing. No regrets.

An astrology app told your correspondent that Jan. 31–Feb. 2 was a time “see beyond limitations.” One nice thing about housing element deadline having passed is that we can stop treating the Bay Area like the center of the universe. I’m sleeping on an air mattress in an attic to afford Berkeley; in Texas at least I could afford an ADU.

And I Feel Fine

Now that HCD’s grades are in, we can compare our own. For the most part, we agreed—municipal governments don't get it. Let people live anywhere.

Now, it’s hard to have uniform “grades” with a 40,000-word statute. Law review articles are shorter than that. Any grading manual that needs manuals on manuals to explain is going to wear people down. And we shouldn’t forget that the law is for people.

Housing elements are, mostly, boring. I couldn’t review three dozen before getting fed up enough to spend two months figuring out what's wrong with just one housing element. HCD is required to review housing elements for “substantial compliance,” which we’ll cover in a future post. We’re free to review housing elements—let’s not forget these are democratic documents—however we like.

The YIMBY Law Awards 

Our favorite housing elements were those of Petaluma, South San Francisco, East Palo Alto, and San Leandro. I’ll explain why.

Petaluma: Best Overall. Last February, before I started, YIMBY Law sent a bunch of cities a letter. We asked cities to do fourteen things to alleviate the housing crisis. Petaluma made most of these a priority starting on p.11. They also planned, starting on p.9, to crush their RHNA. (Yes, they combined their very-low and low-income RHNA to do it. That is an accounting trick the statute appears to allow. I’m just saying every policy person I talked to thinks Petaluma is serious.)

South San Francisco: Most Readable. Not-so-secret lawyer trick: topic sentences! Good lawyers write such that the reader can read only the topic sentence of each paragraph, and still understand what the writing is about. South San Francisco did this, literally boldly, and in doing so authored the least boring housing element. South San Francisco, we salute you!

East Palo Alto: Most Real. As a zoning abolitionist, I sometimes get asked by planners what role I think planning should have. Answer: not nothing! I refer these questions to the planner Alain Bertaud’s masterpiece Order Without Design. Planners should plan for infrastructure, not against density. East Palo Alto, which, like Petaluma, plans to crush its RHNA, wrote a housing element about its water-infrastructure constraints. That is a real problem that the government should manage!

East Palo Alto: it is not your fault that Atherton excludes new neighbors. You did not cause the housing crisis like San Francisco did. But you are on the front line of sea-level rise. We at YIMBY Law understand this, appreciate that you want housing to be affordable, and understand that your planners have better things to do than satisfy a state agency that you have read and complied with a 40,000-word statute. You should have been left alone before San Francisco.

San Leandro: Honorable Mention. I’ll be honest: I commented on San Leandro to conclude the first month I felt like I knew enough to comment on housing elements at all. Being nomadic, I must have had my monthly move on my mind that week. We liked San Leandro’s housing element because it didn’t demand much attention to read. They had a lot of pretty infographics, which isn’t nothing as long as they’re accurate, and beyond that, it was clear that someone had really thought about planning for housing. That’s all a housing element’s supposed to be.

Our least favorite housing element remains to be demonstrated. Catch YIMBY Law in court.

In Partial Defense of Hillsborough

HCD’s least favorite housing element, at least in the Bay Area, was Hillsborough’s. Though not our favorite, theirs would not have been our ‘F’. We gave them maybe a ‘C-’. This is roastable, so I’ll keep my defense partial.

Hillsborough is, like most of San Mateo County, an exclusionary jurisdiction. That is not good. Hillsborough listed BS sites on its inventory, and over-relied on ADUs to fulfill its RHNA when it could have simply stopped regulating density.

Say what you will about the tenets of national socialism exclusionary zoning, dude, at least it’s an ethos. I credit Hillsborough for being honest. Housing-element law requires cities to “[a]ddress” and “remove governmental … constraints to the maintenance, improvement, and development of housing” whenever “legally possible.” (Gov. Code § 65583, subd. (c)(3).) (Astute statutory constructionists will note that Section 65583 further requires constraint removal to be “appropriate,” but without wanting to make it all about me, I’d suggest that it becomes “appropriate” long before a 35-year-old attorney needs to sleep on an air mattress.) 

Hillsborough does not hide its constraints behind bureaucratese: the city is “proud of its low density.” (P.78.) Unlike Walnut Creek, Hillsborough admits it requires “large setbacks, restrictions on … lot coverage ratios, and height limitations.” (P.79.) Thank you—that’s the reason we have a housing shortage, and it’s important to admit it. Other cities constrain development while pretending not to. We don’t like their policies, but we respect Hillsborough for not confusing everyone with jargon. So long as Hillsborough works with HCD and submit to the builder’s remedy, we’ve got more interesting places to sue. 

Is This the Best We Can Do?

It has not escaped our notice (see last five pages) that Fairfield got an HCD ‘B’. In candor, your correspondent felt bad about ragging on Fairfield before sending in his comment letter. But this needs to be talked about.

HCD certifies that Fairfield has met “most” statutory requirements, and your exhausted correspondent isn’t second-guessing HCD here. We called Fairfield’s housing element “earnest” on purpose. Halfway between San Fran and Sacramento, Fairfield didn’t start this fire. But they’re still doing the bad planning things that made housing so expensive.

The housing-element law, also on purpose, has little to say about the specific policies that squash the supply of housing. It should never cost five figures to redraw an imaginary line. Lot-size minimums are really wealth minimums, and the housing-element law seems not to care. This is for the Legislature to fix. Just stop enabling cities to limit density. And good grief, stop calling it an “incentive” when a city council votes, case by case, to limit density just a little bit less. You’re being dishonest to the young and priced-out. If we’re ever going to stop urban sprawl, then the cities that exist shouldn’t be allowed to limit density at all.