Only In California: Twisting an Anti-Exclusionary Law To Rationalize Exclusion

As a Market Urbanism reader, you are hopefully fluent in the problems of exclusionary zoning.  If you’re new to the term, there are some good pieces on the topic here and here.  Basically: exclusionary zoning is the use of zoning to price people out of a community.  The classic example is minimum lot sizes or minimum unit sizes: cities only zone parcels big enough to ensure low-income families cannot afford the housing.  When subsidies for affordable housing require specific unit attributes, like reduced parking ratios, a community can simply require parking ratios above that threshold (although states can move swiftly to stamp out such practices).

States have also responded to exclusionary zoning practices with a wide array of policy interventions known collectively as “anti-snob laws.”  One key component of California’s anti-exclusionary efforts is called the Regional Housing Needs Allocation (RHNA).  The law requires each jurisdiction in the state to produce a Land Inventory (or Adequate Sites Inventory, or Sites Inventory, or Buildable Land  Inventory) that demonstrates the jurisdiction possesses space to accommodate anticipated housing needs at adequate densities.  Read “adequate densities” as dense enough to produce affordable units. Scott Wiener, the state senator representing San Francisco, is pushing to give the RHNA some real teeth.

The most contentious component of the process is the definition of “need” for each jurisdiction.  The state calculates anticipated need based on population and jobs projections for each region.  Regional councils of government (COGs) are then empowered to distribute the regional need to each jurisdiction within that region.  Need is quantified in terms of units, and these needed units are further categorized into four groups: units affordable to Very Low Income, Low Income, Moderate Income, and Above Moderate Income households. Regional agencies had some flexibility in making these allocations in the past.  Thanks to SB 375, which passed in 2008, the regional allocation component of the RHNA process must now be coordinated with transportation planning.

Proposed Regional Housing Needs Allocation for the San Diego metro area, aesthetically presented by the City of Poway (for the real document, see here)

At the end of the day, the process ensures cities are not completely excluding more affordable multifamily development from being constructed by mandating them to always provide space at adequate densities.  State law does not declare that the RHNA represents some kind of maximum amount of housing cities are expected to build before they can turn around and return to exclusionary land use politics.  This should be obvious to anybody who has worked in forecasting.  No public planning process, especially one as politicized as this, can predict the future.  The intent here is to prevent cities from excluding denser (and thus, generally, more affordable) development. Unfortunately, residents in Davis, where I live, missed the memo.

Davis is in the midst of a rental crisis with vacancy rates close to zero (for background, see my first post on Market Urbanism).  Developers have proposed various projects to address the obvious need, and anti-growthers are pushing back.  Not too long ago, one developer penned an op-ed in the local paper arguing in favor of several proposed developments.  In response, one of the most outspoken opponents of growth in Davis wrote an op-ed in reply, in which she said the following:

“Our fair share: Also not covered by Wolf [in the pro development piece] is that Davis already has planned to fulfill its SACOG [Sacramento Area Council of Governments] regional housing needs “fair share” of housing until 2021. Any excess housing built now will not count toward our next “fair share” requirement assigned by the Sacramento Area Council of Governments.

Additionally, excess housing, such as the 1,818 total units being proposed by the four projects, invites SACOG to assign Davis a larger fair-share allocation in the coming SACOG cycle. Over-building housing units now means that Davis will have more housing demands imposed upon it into the future.

Furthermore, these units would use up precious water and wastewater treatment capacity — which we have just increased at enormous expense — that Davis will need in six years for its next Regional Housing Needs Plan allocation.“

Let’s break this down real fast.  First, we are told we should oppose new residential projects because we are on track to meet our RHNA. Then, we are told the RHNA is actually a reason to go NIMBY: If Davis adds “excess” housing now, SACOG (our regional planning agency) will make our RHNA proportionally larger next round and we will “have more housing demands imposed upon” us in the future! Interestingly, this perspective comes from a Davis resident who served on the city’s Steering Committee for its 2008 RHNA update.

Please, friends, go through the state law on the RHNA and find me the section that reads, “and when you have met these imposed demands, you are free to say No On Everything.” It’s not in there.  Instead, the document actually provides a set of objectives for the RHNA and lists as the first objective:

“Increasing the housing supply and the mix of housing types, tenure, and affordability in all cities and counties within the region in an equitable manner, which shall result in each jurisdiction receiving an allocation of units for low- and very low income households.” California Government Code § 65584 (d) (1)

So here are Davis NIMBYs for you, taking a law passed by the state with the objective of increasing housing supply and using it to argue against increasing housing supply. And here’s the real kicker: Our RHNA Allocation for 2013 to 2021 was 1,066 units.  According to the 2013 American Community Survey, Davis contained roughly 25,175 at the time of RHNA deliberations.  So SACOG “imposed” upon us a target growth rate averaging  0.5% per year!

Perhaps Senator Wiener should also introduce a resolution declaring that cities’ progress in meeting RHNA targets is not an excuse for jurisdictions to say No On Everything Else, particularly in jurisdictions like Davis with vacancies at 0.2%.