Monday Morning Thoughts: A Right to Housing Sounds Good…

Photo by Tolu Olubode on Unsplash

By David M. Greenwald
Executive Editor

A right to housing?  San Francisco Assemblymember Matt Haney is proposing a constitutional amendment that would declare housing to be a fundamental human right in the state of California.

The proposed amendment, which would require two-thirds of the legislature to approve and then go to a vote of the people, is relatively straightforward.

“This measure would declare that the state recognizes the fundamental human right to adequate housing for everyone in California. The measure would make it the shared obligation of state and local jurisdictions to respect, protect, and fulfill this right, by all appropriate means, as specified,” the text of the Leg Counsel digest explains.

What is clear is that California remains in the grips of a housing crisis.

As Michael Tubbs, founder of End Poverty in California and the senior fellow for the Rosenberg Foundation, writes in CalMatters this week, “Forty percent of the state’s households now spend more on housing than they can afford, and California is home to more than half of the nation’s unsheltered people.”

Tubbs notes that a fundamental right to housing is consistent with public opinion.  He notes that “a survey found that 55% of Californians view affordable housing as a community responsibility, and 58% believe affordable housing should be guaranteed.”

Color me a bit skeptical.  After all, by some polling over 70 percent of residents of Davis agreed that housing affordability was a problem and more named housing as the top problem than anything else—and yet… what have we done about it?

In the meantime, California has passed in the last five years aggressive housing laws—SB 9 and SB 10—which were supposed to make it easier to convert single family homes to duplexes.  SB 35 created the Builder’s Remedy.

SB 35 was authored by Senator Scott Wiener in 2017 and supposed to streamline construction of housing in places that fail to implement their housing element.

HCD has rolled out aggressive housing requirements in the latest RHNA cycle.  Nearly half the cities in California are out of compliance with the law—and thus subject to the Builder’s Remedy.

Governor Newsom, Attorney General Rob Bonta and HCD have been aggressive in attempting to enforce housing laws.

For example—Elk Grove.

“California has critically important laws designed to combat housing discrimination and increase affordable housing opportunities,” Bonta said in a statement. “(The lawsuit) sends a strong message to local governments: If you violate fair housing laws, we will hold you to account.

“Communities that fail to build their fair share of housing, including those refusing to develop desperately needed affordable housing, will be held to account,” Newsom said.

How much of a difference has SB 35 made?  According to Wiener’s office, in a release earlier this year, “SB 35 has helped develop more than 13,000 units of affordable housing.”

Not to be cynical here.  That’s really not that much.

“(This is) certainly not a silver bullet, and nothing is,” Wiener said, “but this is one meaningful piece of the puzzle to get us there.”

Part of the problem—the threshold to even invoke the Builder’s Remedy is high, 20 percent affordable housing.

In places like Davis, where the Builder’s Remedy has been invoked, there is only one parcel that it might help to expedite housing on—the Palomino Place—but no one knows, apparently not even the state, how it interacts with local requirements for voter approval.

Another problem is that to be built affordable housing is costly and without the RDA, ended a decade ago, California really lacks the kind of funding necessary to do large scale amounts of affordable housing.

Without creating funding mechanisms, the abstract right to housing is not likely to go that far.

But could the constitutional amendment change some of the dynamics?

Tubbs thinks so.

He argued, “The proposed constitutional amendment would help reverse these trends” by requiring “the government to respect the right to housing by not interfering with it.”

Thus, he argues “if a local government passes zoning laws that prevent the construction of affordable housing, it would be in violation of the amendment and the courts could intervene.”

He added, “It would create an obligation to protect the right to housing from third-party threats.”

Would this nullify laws like Davis’ Measure J?  Possibly.  But Measure J might already be invalid under a 2005 law.  However, to date, no one—not a local developer nor the state—has attempted to go to court to invalidate Measure J.

There is reason to believe that might change in the near future, but it still requires a will and resources.

Tubbs believes that the funding problem would be alleviated through the amendment as well.

He said “the constitutional amendment would establish a government obligation to fulfill this new right by enacting policies and budgetary allocations to ensure that all Californians have secure housing.”

He acknowledged, “A constitutional amendment wouldn’t end the housing crisis overnight. But it would require the government to raise as many resources as possible for housing without undermining the long-term viability of the economy.”

It all sounds good, but we have largely seen the same play repeat over and again over the last half decade—new laws by Sacramento are met by local resistance from communities and people with a stake in the status quo.

Until that can be addressed, no law is likely to solve the housing crisis.

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