Chris Elmendorf Profile picture
Sep 14, 2021 24 tweets 9 min read Read on X
Major decision from Court of Appeal interpreting California's Housing Accountability Act. Read @carla_org's thread below for highlights, or continue with this one if you want the legal nitty gritty. /1
Context: California is one of two states that nominally prevent local govts from rejecting or downsizing housing development projects on the basis of "subjective" standards. (The other is Oregon.) /2
This limitation has been on the books in CA since 1999, but there was no caselaw applying it, perhaps b/c developers feared that if they sued a city, the city would screw them on their next project. /3
In 2016, the Legislature authorized housing organizations and potential future residents to enforce the HAA in court, and also provided for an award of attorneys fees to the prevailing plaintiff. (Previously, fees were available only in cases about BMR projects.) /4
A year later, the Leg backstopped the HAA's "objective standards" requirement by stipulating that a project shall be deemed to comply if there's substantial evidence in record that would *allow* (not require) a "reasonable person" to conclude that project complies. /5
This flips the traditional standard of review on its head: normally, in CA and elsewhere, courts must uphold a city's decision to deny a project if a "reasonable person" could *agree with the city's determination of noncompliance* (even if it's dubious). /6
The HAA's new evidentiary standard is the linchpin of the whole scheme, b/c, as Oregon's experience shows, the question of whether a zoning or development standard is clear enough to qualify as "objective" presently vexing line-drawing problems. /7
As one Oregon adjudicator put it, "Few tasks are less clear or more subjective than attempting to determine whether a particular land use approval criterion is clear and objective.” /8
The HAA's evidentiary standard lowers stakes of the "is this standard objective enough" question, while prodding cities to write clear zoning standards. (If the standard is mushy, a city would be hard pressed to show that no reasonable person could deem a project compliant.) /9
The trial court in this case ripped heart out of the HAA, holding, inter alia, 1) that a design standard is "objective" if city makes it thus *by interpretation* at the time it denies a project, and 2) that cities are owed deference on such surprise, time-of-denial interps. /10
San Mateo's Multi-Family Design Guidelines call for a "transition or step in height" when project adjoins a SFH. City staff initially said this project's landscaping, trellis, street-facing stepbacks, and distance from neighboring home provided the requisite "transition." /11
But city denied project after NIMBYs mobilized, and at time of denial the city announced (for first time) that "transition or step in height" entails stepbacks on elevation facing SFH, on every floor above height of said SFH. /12
As a law profs' amicus brief argued, this move could be used to deny almost any project, since vague "aesthetic character" guidelines can always be precisified with novel time-of-denial constructions. /13
carlaef.org/legal-case/4-w…
And yet, city's legal argument wasn't risible: courts have traditionally deferred to cities on the meaning of their own ordinances, and the text of the HAA's "reasonable person" standard arguably implies that it governs only questions about evidence, not legal meaning. /14
But the Court of Appeal would have none of it: "Precisely because the HAA cabins the discretion of a local agency to reject proposals for new housing, it is inappropriate for us to defer to the City’s interpretation of the Guidelines." /15
The Court held that San Mateo's Guidelines aren't objective. Even more importantly, it also held that the project could not be denied because a "reasonable person" could deem it compliant with Guidelines as they stood when the developer submitted their project application. /16
This is tantamount to applying the HAA's reasonable-person standard to the whole of the "mixed law-and-fact" question of whether a project complies with applicable standards. /17
Cities cannot wiggle out of the HAA (as San Mateo tried) by distinguishing law questions from fact questions and demanding deference on the former, even as they kill projects with surprise, time-of-denial interpretations of their own laws. /18
The Court of Appeals's opinion is also important because it methodically breaks down and rejects various constitutional objections the city mustered against the HAA -- home rule, private delegation, due process. (Trial court bit on home rule.) /19
One tiny quibble: the Court labeled compliance with the HAA's reasonable person standard a question of fact, whereas I think it's a question of law. It's kin to the traditional legal question of whether an agency's decision is supported by substantial evidence. /20
But whatever the label, the opinion makes clear that unless a city announces its interpretation *before* the developer submitted her project, the city must accept the developer's theory of how the project complies if a reasonable person could accept it. /21
In sum, this very careful opinion, written by a very well-respected judge, is a huge win for the HAA.

And the central principle it advances will be equally helpful in cases about #SB9 and other housing laws. To wit: when the Legislature acts to curtail... /22
cities' land use authority, courts must review cities' exercise of residual authority with a skeptical eye, lest cities "circumvent what was intended to be a strict limitation on [their] authority." /end @ProfSchleich @RickHills2 @dillonliam @manuelatobiasm @ONeillMoiraK

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More from @CSElmendorf

Mar 23
Proposition: Abundance and the conservationist mode of environmentalism are (or should be) friends, not enemies.
🧵/15. Image
There's a widespread view that Abundance squares w/ environmentalism only insofar as climate supersedes conservation as the Big Issue for enviros.

Tradeoffs b/t conservation & green energy give rise to a "Greens' Dilemma."
/2 Image
Some people (e.g., @TedNordhaus) go further, asserting that environmental ideology is at war with Abundance. There's no space for compromise or synthesis.
/3


breakthroughjournal.org/p/environmenta…
Read 16 tweets
Mar 11
Even if CA enacts this amazing set of bills ⤵️, there are big challenges ahead.

I see six areas of concern on the horizon. 🧵/16.
Concern #1. Local political incentives.

Ditching public hearings on housing proposals ("ministerial approval") is good, but it doesn't give city council members any affirmative reason to facilitate -- or simply not obstruct -- development.

/2
What would improve their incentives?

- Replace single-member district elections w/ at-large or multi-member district elections. There's strong causal evidence that SMD elections depress housig production.

- Fix Prop. 13, or create new state -> local fiscal...

/3 Image
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Read 17 tweets
Mar 11
It's exciting to see the public-intellectual drumbeat around "Abundance" manifest in this year's crop of California housing bills.

They're far more ambitious--and promising--than anything I've seen previously. 🧵/17 Image
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#1: CEQA reform that's broad, deep, and clean.

@Scott_Wiener's SB 607:
- authorizes admin mapping of good-for-infill areas & greatly simplifies CEQA review of housing in those areas (in line with the recommendations of this...

/2
leginfo.legislature.ca.gov/faces/billNavC…
paper, papers.ssrn.com/sol3/papers.cf…, and this @CALittleHoover report, lhc.ca.gov/report/califor…)
- limits the administrative record in all CEQA cases, which will simplify & speed litigation
- limits scope of enviro study for projects that nearly qualify for an exemption
/3
Read 17 tweets
Mar 4
Correction: My earlier posts (⤵️) about AB 1893's "baby builder's remedy" for projects on housing-element inventory sites missed an important detail.

There was (I think) an accident in the drafting of AB 1893 which may greatly limit its reach. 🧵/13 Image
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AB 1893 is @BuffyWicks's "builder's remedy grows up" bill.

It tried to clarify the development standards that apply to those housing projects which a city may not disapprove (or render infeasible) on grounds of noncompliance w/ zoning.

/2
Under subd. (d) of the HAA, there have long been two such classes of projects:

(1) in cities w/o compliant housing element: any housing project ("builder's remedy")

(2) in cities w/ compliant HE: projects on HE inventory sites at HE-allowed density ("baby builder's remedy")

/3 Image
Read 14 tweets
Feb 1
Had a great chat yesterday w/ Tal Alster about Israel's TAMA 38 program and potential extensions to SFH -> plex projects in the U.S.
🧵/17 Image
TAMA 38 authorizes condo HOAs, by supermajority vote, to contract w/ developer to redevelop their building as a larger building w/ more units.

- owners each get a bigger/nicer/safer condo, and money to pay for temporary housing

- developer profits from the added units

/2
Program is hugely successful:

- more than 50% of new housing in Tel Aviv is built thru redevelopment of existing stock

- condo owners have become political supporters of densification

/3 Image
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Read 18 tweets
Jan 30
An L.A. rebuild problem which @GavinNewsom & Leg ought to fix, post-haste:

- Many people who lost their homes are underinsured & can't afford to rebuild.
- Many others are inexpert at supervising contractors & vulnerable to being scammed.

The best path forward...
1/🧵 Image
for many such folks is probably to sell their burned out property to a developer, for cash or cash + option to purchase a new townhome or condo that the developer will build on the property.

But, L.A. County's plan to 2-track permitting...

/2
(fast-lane for like-for-likes, slow lane for everything else), is going to depress what developers bid for properties and reduce opportunities for homeowners to strike "my lot for $ today + townhome tomorrow" deals w/ developers.

/3


Read 22 tweets

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