Under the Sea

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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.

One Does Not Simply Sue the Government

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To a lawyer, it feels dissonant for freshly filed lawsuits to make the news. Filing suit isn’t even close to getting a judgment. Here’s a look behind the scenes of filing—and serving—a YIMBY lawsuit.

Sue for What?

YIMBY Law sues to legalize housing, but how courts can legalize housing isn’t so clear. We believe that “[s]eparate [housing laws] are inherently unequal,” but exclusionary zoning is entrenched in the law. (Compare Brown v. Bd. of Educ. (1954) 347 U.S. 483, 495, with Vill. of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365.) It hasn’t even been eight years since the Supreme Court of California went out of its way to defend apartment bans, lot-size minimums, setback requirements, height limits, and other “aesthetic restrictions” against constitutional challenges. (Cal. Building Indus. Ass’n v. City of San Jose (2015) 61 Cal.4th 435, 455, 462 [dicta].) The legal deck is still stacked against housing.

  • “Dicta” is legalese for “not essential to the holding.” All judicial opinions contain dicta; to call a passage “dicta” is to argue that a court can steer around it without disregarding precedent. For example, the U.S. Supreme Court’s statement that “the apartment house is a … parasite” (Euclid, 272 U.S. at 394) was dicta; the Court’s holding in Euclid was merely that zoning is presumptively constitutional. (See id. at 395.) So in Building Industry v. San Jose, the court’s approval of lot-size minimums is dicta, because the court could have upheld inclusionary zoning without it.

For now, housing elements are the law we have to work with. We knew in November that at least 33 Bay Area jurisdictions, having failed to draft a housing element by then, had locked themselves in for a zoning holiday. These local governments made themselves easy targets. We don’t (yet) have the staff to sue all 33 at once, but with a popular movement calling for housing and so many cities failing to plan for it, we had to sue a few.

Palo Alto and Cupertino, You Got Served

We’ll skip ahead to the fun part before we kvetch about the boring parts farther below. The week before last, star watchdog Anne Paulson served process on Palo Alto and Cupertino. The respective homes of a world-class university and the world’s most valuable company both failed to plan for housing in time, and we’re suing each of them with our friends at the California Housing Defense Fund.

The first thing that has to happen after a lawsuit is filed is to let the defendant know they’ve been sued. Some people really don’t want to show up for court, and for a court to enter judgment against a defendant who’s not there, it’s important that a third party can testify the defendant knew they’d been sued. That’s where process servers come in. Serving process is a real, even movie-worthy, niche in the legal industry.

As a Hollywood depiction of legal practice, Pineapple Express does a much better job than Suits. Creative costumes and workplace ambushes really happen in real life. Even the state Judicial Council encourages self-represented litigants to “[b]e creative!!!” in serving process. 

  • It’s not the best practice, but maybe! The more glaring fiction in that clip is that a real-world surgeon would not be served in the operating room. But serving process would have been a good career choice for a stoner in 2008. In the rare instances when a process server gets called to testify, the defendant will be claiming “I never saw Dale Denton,” not “Dale Denton was high.” The second claim, implying that the defendant saw Dale Denton, would backfire.

    For a mind-blowing SCOTUS case upholding the verdict of a drunk, stoned, coked-out jury, see Tanner v. United States, 483 U.S. 107 (1987).

Almost anyone can serve process. The only legal requirements are that the process server be over 18 and not a party to the case. There’s an American tradition of engaging the public in court cases, and we’re bringing it back. In Democracy in America (1835), Alexis de Tocqueville commented that “the jury in civil cases … communicate[s] the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions.” We agree: the law is for people. Jury trials aren’t as common as they used to be, but any lawsuit can still use a process server. 

We’re proud to have our cases show there’s a movement for housing to be legal.

ALL THE Rules About Enforcing the Rules

Now for the boring parts. Lawsuits require a lot of unglamorous work to file, especially in California.

Most of the country operates on some version of the Federal Rules of Civil Procedure. The federal rules have been in place, with relatively few substantial changes, since the 1930s. Every reputable law school teaches them, and most states mirror them with minor variations. As a common language for American litigators, the federal rules have been a success.

But the four states with the most lucrative legal markets—California, Illinois, New York, and Texas—don’t track the federal rules. This imposes a learning curve on lawyers from out of state. (One hopes this is for reasons other than fencing out competition, but that’s none of our business. 🐸🍵)

California has a special set of rules for so-called “writ proceedings,” which our housing-element lawsuits are. Writs are archaic—even Illinois has abolished them—and we’re as confused as you are as to why California has two different kinds of lawsuits. The Code of Civil Procedure says there’s only one kind of lawsuit, and yet regular lawsuits start with a “complaint” while writs start with a “petition.” Complaints are served with a summons while petitions are served as a summons. Petitions must also be verified, which triggers a special court rule for electronic filing of signed statements made under penalty of perjury. This last bit isn’t unique to California, but it too adds complexity: lawyers must know and follow the state court rules, which aren’t the same as the rules of civil procedure. Capisce?

Each superior court maintains a set of local rules, too. It’s not uncommon for local rules to contradict themselves or go unobserved in practice. For attorneys filing their first lawsuits in a new venue, there’s an art to navigating all this confusion.

These situations can often be resolved with a phone call to the clerk’s office. For example, Marin County Rule, General 1.51 would suggest that electronic filing is mandatory, while the court’s website implies that paper filing is mandatory. In reality, the court is transitioning from a paper to an electronic system, and initial filings are still done with paper, but the anachronistic two-hole punch and stapling requirements are no longer enforced (despite what the website and the state court rules say). The clerk’s office cheerfully explained all this in a five-minute phone call. Your correspondent has no real objection to this confusing but ultimately humane way of running a court. It was even fun to visit the county’s Frank Lloyd Wright-designed courthouse in order to file suit.

Other courts, however, have slipped from underfunded to unreachable. This is the case in Santa Clara County. We don’t enjoy airing this criticism, and in fairness to the court, its website is quite good. Your correspondent’s sister once worked for a federal court, and we appreciate how much lazy lawyering court clerks confront. But it is impossible to telephone a human in the clerk’s office of the Santa Clara County Superior Court.

Recall that California has different rules for petitions and complaints. We had heard, from a Santa Clara County practitioner who’d had a civil lawsuit notice rejected, that Local Civil Rule 1E (requiring civil lawsuit notices) does not apply to petitions. But the text of the rule suggests nothing to that effect. Wanting to confirm we understood the local rule correctly, we called the clerk’s office, again and again. We tried for hours, and got routed back to the main menu or disconnected every time. The court’s designated email for local rule questions hasn’t responded to us after 18 days, either. Your correspondent got some guidance by taking an afternoon to visit the clerk’s office in person, and it’s still not clear to us when or why the civil lawsuit notice is necessary. The more reachable county courts don’t require them.

We can take our time on all this because we’re a nonprofit, but this degree of opacity would inflate the cost of a private lawsuit by more than $1,000. We need simple rules that real people can understand. Here’s to the real people: we’re grateful to Anne, the city clerks, and the court clerks we’ve interacted with for helping us make law happen. We’ll get the housing we need eventually.

The Housing-Element Review Review

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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.

"We're from California."

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California infuriates me sometimes. I’ve returned to Berkeley after two months in Tucson and El Paso, and I have to say: it was nice being able to talk about housing without talking about housing elements. “RHNA” isn’t a word in Arizona. But the interior Southwest has a housing crisis too, and it’s connected to California’s.

I know this from experience.

For seven years, California was an expensive place I could sort of afford on vacation. I had a job I liked in Arizona, where I could rent a minimally maintained two-bedroom for $815 (2015) and, after a couple raises, a nicely renovated two-bedroom for $1250 (2017). Rents were stable enough until the pandemic. 

“We’re from California.” Confined to my uptown Phoenix apartment in the summer of 2020, it was impossible not to overhear the real-estate agents and the moving trucks. My then-girlfriend’s S.F.-based coworkers all relocated to Phoenix. My landlord suddenly wanted, and surely found an ex-Californian to pay, $1450. Saving was trendy then, so back down the housing ladder I went to a crappy corporate studio apartment for $1280 (2021). The building was full of ex-Californians. When it was time to renew, Weidner Apartment Homes tried gouging me for $1640 (2022). But the building, whose elevator had been broken for two months, hadn’t gotten 28% better. And there wasn’t a smaller unit for me to downsize to, so I told Weidner I would get lost. I’ll never forget commiserating with another soon-to-be-ex-Phoenician, similarly determined not to let Weidner rip him off, carrying his own furniture down the stairwell the day I moved out.

Can't have a shoe rack when your home is a Miata.

Can’t have a shoe rack when your home is a Miata

Something weird has happened in the housing market: short-term housing has become cheaper than long-term housing. All over the country, there are spare bedrooms and backyard sheds with monthly discounts on Airbnb. That’s how I’ve been living since May. I’ve saved thousands, even up and down coastal California, compared to what my former studio apartment in sonoran Arizona would have cost me. The ADU I just rented in El Paso was only $925.

Yes, the freedom is nice. I do not miss having a landlord, and you’re kidding if you think I’m taking a 30-year mortgage at these prices. But there is a day every month when I can’t leave my car. And there are entire months, depending on the layout and my hosts and their pets, when I can’t cook or use the bathroom at night. There’s a lot to be said for having a home.

California started this crisis, and it needs to fix it. That’s what motivated me to come work here. After a year in and out of the state, though, I can’t help but feel like Californians forget there are 49 other states affected by its housing crisis too. Being less equal than anywhere west of Louisiana, the state codifies an eleven-syllable term for equality and calls itself a leader. Housing elements are a lot of labor and bickering and bureaucracy for a half-million pages that aren’t real-world housing, and I can’t say what good they are unless they just legalize housing. (Thank you, Alameda.)

I’m done posting every week for a while. California law is too much. There will still be a housing shortage after Bay Area housing elements come due next week, I’m busy tracking where the builder's remedy might apply, and I’ve got lawsuits to prepare. You’ll hear about them next time I post.



Housing Element League Table

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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.