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Chris Elmendorf Profile picture
@CSElmendorf
Oct 13 • 12 tweets • 4 min read • Read on X
SB 79 Thread #5.1: Advice for the Legislature, short term.

Leg needs to pass an SB 79 cleanup bill as part of the next budget, i.e., a cleanup that takes effect on 7/1/2026.

This thread addresses the cleanup; SB 79 Thread #5.2 will look to the future.

1/8
The cleanup is needed b/c SB 79 tells @California_HCD to "promulgate standards" by 7/1/2026 for counting SB 79 capacity toward RHNA, yet (unlike other laws conferring standard-setting authority on HCD), it doesn't exempt HCD from the Administrative Procedures Act.

/2 Image
The Cal APA's notice-and-comment requirements are notoriously cumbersome, far worse than those of the also-very-cumbersome federal APA.

There's not a chance that HCD gets it done through the Cal APA process by the deadline.

/3
HCD could try to invoke the "emergency" exception from notice & comment, but I don't think the emergency criteria would be met.

Missing a statutory deadline does not cause "serious harm to the public peace, health, safety, or general welfare."

/4
oal.ca.gov/emergency_regu…
Also, as I explained in SB 79 Thread #4, local governments should want HCD to issue clear guidelines re: HCD review of SB 79 implementation ordinances & Eckhouse plans.

Those guidelines would also violate the Cal APA unless ratified by Leg.

/5

While the Leg is at it, here are my other suggestions for a trailer bill:

Local implementation ordinances / Eckhouse plans should be required to:

- Declare FAR/density/height allowed in each zone & waive local rules that "physically preclude" it (like SB 79 default rules).

/6
This isn't (now) an explicit requirement of SB 79. Instead, cities must show by "preponderance of the evidence" (tough!) that local dev. standards don't physically preclude allowable density/height/FAR.

I don't see how cities could make that showing as to every parcel.

/7 Image
A legally binding commitment to grant waivers when necessary obviates the need for cities to make parcel-by-parcel showings that local dev standards don't preclude the nominally allowed density/height/FAR.

/8
- Grant SBDL waivers & extra concessions on same terms as the SB 79 default rules (GC 65912.057), i.e., no height waivers but everything else OK.

Again, this isn't (now) an explicit requirement of SB 79 w.r.t. Eckhouse plans. But I presume it's what the Leg intended.

/7
I have a few other minor suggestions, but they're so small bore as to be unworthy of a thread.

HCD, cities, & housing advocates will surely discover other things that would benefit from clarification too.

Making SB 79 clearer is good!

/end

Should also have pointed to my earlier threads on legal ambiguities in SB 79. (No doubt many other ambiguities will turn up as cities & HCD begin implementing it.)
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More from @CSElmendorf

Chris Elmendorf Profile picture
Oct 13
SB 79 Thread #5.2: Advice for Leg, longer term.

tl, dr: I agree w/ @mnolangray that Leg should focus on (1) lowering construction costs, and (2) protecting incumbent tenants w/o blocking redevelopment on fair terms to tenants.

I also think (3) that...

1/25 Image
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Leg should probably try to accommodate the most passionate & deep-pocketed NIMBYs, who might otherwise bring the whole framework crashing down.

Worst case is a "Prop 13 for land use" ballot measure.

/2
Short of a nuclear ballot-measure, NIMBY opposition to SB 79 could induce cities to pass local measures that hinder multifamily housing development across the board, not just SB 79 projects.

/3
Read 26 tweets
Chris Elmendorf Profile picture
Oct 13
Now that @GavinNewsom has signed SB 79, it's time to write #4 and #5 of the threads I promised.

This is SB 79 🧵#4: Advice for local gov't officials.

Read it if you're feeling stuck b/t pitchfork- or recall-wielding NIMBYs and the demands of state law.

1/21
First suggestion: Do everything you can to *maximize transparency* about where, when & how SB 79 applies -- and about the discretion it confers on city councils to alter SB 79 default rules or roll back other upzonings.

/2
I say this not b/c I think transparency is inherently good. Rather, I think it has real instrumental benefits for councilpersons who fear a NIMBY uprising.

Clarity about where SB 79 applies will, at least on margin, lead to geographic reshuffling of population.

/3
Read 22 tweets
Chris Elmendorf Profile picture
Oct 11
A 🧵on rolling the dice ⤵️ on mid-cycle Builder's Remedy, in light of New Commune v. Redondo Beach.

I'll sketch the argument for the builder, the counterargument, and why I think @California_HCD, @AGRobBonta, and the courts should probably accept the counterargument.

1/25
See screenshots for relevant statutory text.

Key idea: A city found to be in compliance by HCD is compliant as a matter of law until HCD has revoked its finding or the finding has been "superseded by ... a decision of a court of competent jurisdiction."

/2 Image
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"Superseded by a court" could mean (1) that a court rejected a legal theory that HCD relied upon in certifying a city's housing element (@DRand2024's view, I think), or (2) that the court found that city's HE or rezoning noncompliant (my view).

/3
Read 26 tweets
Chris Elmendorf Profile picture
Oct 11
BIG new decision from Court of Appeal on housing-element law.

@DRand2024 says mid-cycle builder's remedy projects are coming soon. S/t one small caveat, I agree!

The decision also has big implications for sites analysis. Is p(dev) approach now de facto required?

🧵/22 Image
The court's first holding concerns the detailed statutory requirements for rezoning for "lower income" RHNA.

GC 65583.2(h) spells out minimum density requirements (16 or 20 du/acre) for sites that cities rezone to make up a "lower-income RHNA shortfall."

/2 Image
In Martinez v. Clovis, Court of Appeal held that an "overlay" zone violates these min-density requirements if residential use (at lower density) is allowed by base zoning.


/3
Read 23 tweets
Chris Elmendorf Profile picture
Oct 5
I wrote a long 🧵 yesterday on my puzzlement about the chatter that @GavinNewsom or his advisors might think it'd be politically prudent to veto SB 79.

Today I'll explain why I don't think he'll cave.

tl,dr: he's a bold idealist and fundamentally good on housing!

1/🧵
Context: I don't know Newsom or any of his top advisors personally. (I met him once at a law-school commencement ceremony, that's all.)

But I've watched him for a long time, first as my mayor in San Francisco, then as Lt. Governor and Governor.

/2
His defining quality as a politician is a willingness, even an eagerness, to make big, idealistic bets on the future.
He's a first mover, always looking for the new thing.

/3
Read 21 tweets
Chris Elmendorf Profile picture
Sep 19
New Searchlight poll validates essentially all of the takeaways from my work w/ @ClaytonNall & @stan_okl on housing "supply skepticism" in the mass public.

(They got substantively similar results using different questions on a different sample.)

1/8
Point #1: Most people want lower housing prices--including most homeowners!

/2 Image
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Point #2: Most people don't believe that a positive housing supply shock would result in lower prices. (This implied by "personal finances" item on Searchlight poll, as well as "home values.")

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Read 9 tweets

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