CA housing folks: Why haven't builders exploited the state law exempting 20%-affordable projects from zoning / plan in cities that don't accommodate enough? @YIMBY_Law @hanlonbt @anniefryman @CAHousingPod @michaeldlane @ProfSchleich @RickHills2 @kookie13 @kimmaicutler 1/17
This thread explains relevant California law, then suggests possible answers and a legislative fix. 2/17
(And if anyone knows of examples / case studies on point, please share!) 3/17
The relevant statutory language is in Cal Govt Code 65589.5(d)(5)(B), added to Housing Accountability Act in 2005. 4/17
65589.5(d) sets forth the exclusive grounds on which 20%-affordable projects may be denied or rendered "infeasible for the use of [low- or] moderate income households" 5/17
The practically important grounds are: (d)(1) city has met its RHNA target; (d)(2) project would have specific, adverse, non-mitigable impact on public health / safety; or (d)(5) project violates zoning and general plan. 6/17
But (d)(5) states that plan & zoning may NOT be used to deny project if city lacks a substantially compliant housing element. 7/17
And even if housing element is okay, (d)(5)(B) says plan & zoning may NOT be used to deny project if city "has failed to identify in its housing element sites that ... are sufficient to provide for the jurisdiction's RHNA share" in the planning period. 8/17
"In any action in court, the burden of proof shall be on the [city] to show that its housing element does identify adequate sites with appropriate zoning and development services and facilities to accommodate its [RHNA] share." 65589.5(d)(5)(B). 9/17
So why don't developers go to cities grossly off track in producing low / moderate income housing (see HCD's website), propose 10-story (or whatever is most profitable), 20%-affordable buildings on sites zoned for SFHs, and use (d)(5)(B) to defeat zoning/plan restrictions? 10/17
Developer would argue that city's poor record of producing affordable housing (relative to its RHNA share) is prima facie evidence that housing element does not identify adequate sites. City has burden of proof. 11/17
I'm keen on this strategy, but here are three reasons why developers may be reluctant to use it... 12/17
A) City might argue that conditions reducing size of project do not render it "infeasible for use of [low / moderate] income households," and thus 65589.5(d) is inapplicable. 13/17
(I'd argue that any reduction in unit count triggers 65589.5(d), but statute is not clear and I'm not aware of any caselaw on point.) 14/17
B) City could require full EIR, delay project for years, update housing element in the meantime (designating other sites for affordable housing), *then* deny project on basis of general plan / zoning. Developer's investment in project design / EIR would be for naught. 15/17
C) Developer may doubt that court would make a real, functional assessment of adequacy of sites in housing element (in light of city's development regulations & practices), notwithstanding burden-shifting language of the HAA. 16/17
Possible legislative fix: amend HAA to require functional assessment, & to clarify that project eligibility for plan / zoning exemption under (d)(5)(B) shall be determined solely on basis of circumstances at the time developer's application is deemed complete. 17/17
