Thread by @CSElmendorf

🧵@California_HCD has found L.A.'s largely exemplary housing plan noncompliant, on ground that it doesn't adequately "affirmatively further fair housing."

I fear this was a big mistake. 1/25

Context: the traditional problem w/ housing element law is that cities relied on fake assumption that every parcel in plan was certain to be developed during planning period. For a target of 1000 units, city would provide parcels whose zoning allowed ~1000 units, ignoring... /2

the fact that most parcels have a tiny probability of development during planning period. (For Bay Area housing element sites from last cycle, Kapur et al. find p(dev) < 0.10.) /3

lewis.ucla.edu/research/what-…

To its great credit, LA teamed up w/ @TernerHousing to estimate p(dev) for every residentially zoned site in city, and only counted each site for p(dev) * (expected density conditional on development). /4

https://twitter.com/CSElmendorf/status/1411037893297012739

B/c of this, LA -- which has enough on-paper zoned capacity to accommodate the entire 1.3 million unit target for Southern California -- had to commit to major rezoning for additional capacity. Which it did, willingly. /5

planning.lacity.org/odocument/f5ac…

LA also acknowledged that current distribution of zoned capacity is skewed toward low-income & minority neighborhoods, and it promised to target high-opportunity areas w/ its rezoning program. /6

HCD's review letter praises LA for the capacity analysis and rezoning program. /7

But HCD found that the city's housing element did not achieve "substantial compliance" (the legal standard), because certain programs "related to AFFH" lacked "metrics" and "firm commitments and specific targets for AFFH outcomes." /8

Notably, HCD did not provide any examples of metrics, commitments, or targets that would be sufficient for LA to be certified as compliant. /9

This is worrisome, both politically and legally. Politically, LA has been great. LA reps voted for "Coastal Plan" that shifted the intraregional allocation toward high-demand cities. Then LA planners did the realistic capacity analysis that led city to accept big rezoning. /10

Other cities may look at HCD's rejection of LA's plan and say to themselves, "Even if we do nearly everything right, it's never going to be enough." They'll lobby Leg for exemptions, rather than make good-faith efforts to comply. /11

Legally, HCD's basing its decision on the inadequacy of LA's AFFH program is risky too. The idea of AFFH ("affirmatively furthering fair housing") is sweeping and it pushes in many directions. /12

The statute tells cities both to help disadvantaged minorities leave poor neighborhoods ("mobility strategies") & to "revitalize" those neighborhood w/ "place-based strategies" -- tho w/o displacing anyone! /13

AFFH's internal tensions are why Obama's HUD emphasized process not outcomes, and why @n_kazis sagely counsels for a focus on discrete unfair practices (e.g., large-lot SFH zoning), rather than overall assessment of the adequacy of a city's programs. /14 papers.ssrn.com/sol3/papers.cf…

Combine this w/ old California cases holding that a housing element "substantially complies" if the city checked all the statutory boxes -- even if the housing element's programs are substantively lousy & HCD rejected it -- and we've got problems. /15

I & co-authors have argued that those bad old cases have been abrogated by implication, given everything the Leg has done to strengthen the law over the past 5 years. /16
papers.ssrn.com/sol3/papers.cf…

But we also emphasized that HCD is on surer footing if it rejects housing elements for inadequate analysis of site capacity & constraints. (B/c leg has given HCD standard-setting authority in those areas.) /17

I fear that if the first cases testing the continued vitality of the old box-checking conception of "substantial compliance" center on AFFH, the courts will reaffirm that box-checking is enough -- precisely b/c they won't discern any standard for assessing AFFH substance. /18

The alternative (absent standards for AFFH substance) is to conclude that HCD has unfettered discretion to demand "more" with respect to any city's zoning, infrastructure, tenant protection, affordable housing & other programs. /19

I don't see courts going for that. Maybe I'm wrong. I certainly hope I'm wrong, as I don't think HCD would abuse its discretion (it faces too much political pressure from cities).

But I wouldn't wager that I'm wrong. /20

Perhaps the big lesson from this housing element cycle will be that just as cities must provide objective standards for developers (HAA, SB 35, ADU laws, etc.), HCD must provide objective standards for cities. /21

Our neighbors to the north (Oregon) are doing this now, and seemingly well. /22

https://twitter.com/CSElmendorf/status/1338200114389635078

In CA, it would require changes, both legally and culturally:

Leg wd need to authorize HCD rulemaking & frame procedural alternative to dysfunctional Cal. APA.

HCD wd have to change mindset from "help cities and planners" to "set workable standards." /23

Who knows how it'd play out.

But what we're seeing now is that when HCD tries to "get real" w/o standards, the result is befuddlement & frustration -- not only for bad actors like Davis, Santa Monica, and Beverly Hills, but also for cities that have done yeoman's work. /24

HCD is absolutely doing its best under tough circumstances, w/ small staff & avalanche of housing elements to review. (They'll probably approve LA's housing element after modest amendments.)

I just worry about what will happen when a city decides to sue. /end