It's July 3.

In early February, we sued four Bay Area cities for breaking California’s housing law. They all missed a deadline to update their housing plans. Every city admitted, in court, that it missed this deadline.

We have not won any of these cases (yet). Here’s Cupertino, arguing why we can’t win such a case:

The law says we get a hearing within 120 days of requesting one, but the superior court will not decide the case until Cupertino prepares an administrative record. We objected that no record is needed; the city admitted the only important fact.

We have no further comment (yet).

"Money Has No Essence. It's Not 'Really' Anything."

I’m on vacation, reading Encounters with the Archdruid by John McPhee. It was published before I was born. Of all the books that have been published during my life, here’s an online copy of my favorite.

Write to y’all in a fortnight.

—Keith

Certifying for the Wrong Reasons

San Anselmo’s draft housing element (p.133) would “allow[] missing middle housing types in all residential districts.” 

San Anselmo’s draft housing element was not certified by HCD.

Sausalito’s housing element wasn’t yet written when the city voted to adopt it. (They wanted to beat a deadline.) State law requires the city to upzone, but instead, the city will be asking its voters to upzone.

Sausalito’s housing element was certified by HCD.

Now comes Los Altos Hills, bragging that HCD’s recent certification “protects us from [housing] under [the] Builder Remedy.” Like Sausalito, the town council didn’t vote on its final housing element, which claims (p.6) that “non-substantive changes” made after the vote by staff made the difference in certification.

It isn’t hard to tell when a city wants to welcome new neighbors. San Anselmo does, and an administrative agency sent them back to the drawing board. Sausalito and Los Altos Hills don’t, and they’ve been certified.

Housing matters more than housing elements. Too bad the law has its priorities reversed.

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

A Letter and a Brief

We’ve written a lot in support of our cases recently. In lieu of a blog post, here’s our letter to the Town of Fairfax on its housing element and the builder’s remedy, and our court filing on Palo Alto’s failure to adopt a housing element before January 31. Enjoy.

Letter to Fairfax

Briefing on Failure to Adopt

Clovis Caper Creates Caselaw

The Fifth District Court of Appeal has published a fresh, citeable precedent on the housing-element law. Here are our thoughts.

Beyond Fonseca

First off, congratulations to Central California Legal Services and the Public Interest Law Project for their well-litigated victory. Their win, Martinez v. City of Clovis, is the most comprehensive housing-element case since Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174. Fonseca had interpreted the housing-element law as codified in 2002. It was already outdated in 2007, and the statute has been revised much more since then. So we’re glad to have an interpretation of the housing-element law as codified in 2019. It’s challenging to litigate on thin precedent, and we’re grateful to the Martinez team for setting a new one.

DALL·E rendition of Clovis as Eagleton

Clovis, the Eagleton to Fresno’s Pawnee, had a housing element. (The San Joaquin Valley’s housing elements aren’t due for an update until the end of this year.) Clovis’s housing element was about what you’d expect from an Eagleton. Clovis wore HCD down and got its housing element certified, but that didn’t deter housing advocates from suing. The housing advocates won, and Clovis appealed.

The court of appeals agreed: Clovis’s housing element wasn’t compliant. That the court disagreed with HCD’s certification shouldn’t be a surprise, since substantial compliance is a question of law. It depends on what the statute requires. 

In this case, the housing-element statute requires … that a subset of a subset of sites, designated in a housing element’s inventory of land, must be zoned at both of two parallel minimum densities. Got it? 

This is where we repeat that the 40,000-word housing-element statute is too complicated. We’ve read and could explain Martinez’s settling of the interaction between overlay zoning and minimum densities—we may have to, in our own lawsuits—but we think such details distract from the bigger picture. The rent is too damn high! Zoning created this crisis. Overlay zoning isn’t going to save us from zoning.

Toward Equality

Martinez is, more notably, the first appellate case to apply California’s 2018 mandate to “affirmatively further fair housing” (aka “AFFH”). Much ink has been spilled elsewhere on AFFH, and it’s nice to see some ink dry at last in the Official California Appellate Reports.

The good news is that AFFH is judicially enforceable. It can be litigated under Section 1085 of the Code of Civil Procedure.

The huh? news is that we still don’t know what, exactly, AFFH means. The statute says it means “meaningful actions,” which means the legislature assumed someone else would decide what “meaningful” meant. In Martinez, the court holds that neglecting the parallel minimum-density mandates, in and of itself, violates AFFH. But so what? It already violates the housing-element law. Martinez also ruled that it might violate three older nondiscrimination statutes. So while Martinez says that AFFH requires something “more than” nondiscrimination, the court found no occasion to explain the difference.

This is not equal protection!

Our view is that AFFH is a long acronym for “equal protection,” and that equal protection means apartments should be legal wherever houses are. Why today’s courts don’t (yet) agree with us is a long story. We’re working on it.