Commentary: Why State Action on Measure J Is Probably Inevitable

By David M. Greenwald
Executive Editor

Davis, CA – For several years now I have been closely watching the actions of the state of California—AG Bonta, Governor Newsom and HCD—on housing.  I have come to the conclusion that ultimately, unless something pretty drastic happens to change things, Davis’ Measure J will be targeted by the state and the courts will nullify it as an unlawful constraint on housing.

I didn’t come to this conclusion lightly and without consulting quite a few people who know more about this type of stuff than I do.

Not everyone agrees with this assessment—and that’s fine.

Some have called this a “threat” and pointed out that the City’s Housing Element update was ultimately accepted by the State.

Others believe that the community will ultimately approve some Measure J projects.

They may be correct here—and I am far from arguing that confrontation by the state is unavoidable—I just think that’s where things are heading.

For one thing, I think the city will attempt to take a middle ground course by creating a broader Measure J exemption—I just happen to believe that it is unlikely the voters will approve it.

Further, the city might avoid the ultimate showdown by having the voters approve future Measure J projects.

The problem I see is it is going to take more than one approval to address the housing requirements likely to be issued by the state in the Seventh Cycle.  Depending on the number, it might take more than two or three projects.

As I have noted, under Measure J over the last 25 years, only two projects have been approved—neither built—and over the last 16 years, only 700 or so single-family homes have been constructed.

So to argue that the city can approve 2000 units, and 1000 of them affordable, seems like a huge ask given the last 20 years.

The city has already acknowledged that it cannot rezone sufficient land for infill housing to meet particularly the affordable housing needs.

Will the state really come in?  And if so, when?

As I said, it’s worth watching what is happening elsewhere.  For example, at the end of March, the city of Fullerton settled a state lawsuit over affordable housing requirements.

In the face of a lawsuit, the city agreed “agreed to a settlement that requires it to comply with the state’s Housing Element Law no later than November 5, 2024.”

“The settlement mandates that Fullerton allow for 13,209 housing units to be developed and nearly 40 percent must be low income,” it was announced.

Bonta sued in Orange County Superior Court, alleging that Fullerton city officials failed to adopt a housing element plan for the 2021-2029 time period and took no action for more than a year after receiving a letter from the California Department of Housing and Community Development (HCD) finding that its Housing Element draft was non-compliant.

“We’ll all be monitoring Fullerton and watching as the city makes progress,” said Matthew Gelfand, an attorney with Californians for Homeownership. “Any non-compliance with the settlement agreement would likely be of concern later this year, not immediately. There aren’t a lot of immediate requirements that the city has.”

He added, “Cities are not required to build housing…  These are just requirements to ensure the planning rules of the cities are set up to allow developers, whether traditional for-profit developers or non-profits, to come in and build housing if they have access to those properties.”

Some may well take comfort in knowing that the lawsuit was in the face of a failure to get an approved Housing Element, but that’s a scenario that could present itself in Davis down the road when the next cycle comes up.

It’s also worth noting the issue that arose in Elk Grove.

The issue in Elk Grove is the officials rejected an affordable housing project in its Old Town neighborhood.

As a Sac Bee column put it, “Elk Grove officials are still acting as if they did nothing wrong by initially rejecting the Oak Rose Apartments, a move that resulted in Bonta suing them and Gov. Gavin Newsom publicly criticizing them.”

The real problem: “But Elk Grove hasn’t built nearly enough affordable housing overall, and that’s essentially why they were sued by Bonta.”

Do people really think if Measure J becomes a barrier to building sufficient affordable housing in Davis, that the state will sit by?  Some think this is some crazy scenario concocted by the Vanguard, but the reality is that the state has already narrowed its gaze.

The warning signs are embedded in the communications from the state to the city of Davis.

As I have previously noted, the issue here appears to be whether a land use control acts as a constraint on housing.

The authority here rests in Government Code section 65583, subdivision (a)(5). This requires an “analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels.”

The section refers specifically to “land use control.”

And notes, “The analysis shall also demonstrate local efforts to remove governmental constraints that hinder the locality from meeting its share of the regional housing need…”

In the Second Version of the City’s Housing Element, it noted, “The city of Davis will complete a comprehensive review of the following policies to evaluate the cumulative impact on residential development… Measure J.”

Here it is required to evaluate “whether the cumulative requirements are a constraint on housing development.”

The city acknowledged that it did not undertake this review “prior to the preparation of the 2021-2029 Housing Element Update. However, with the passage of SB 330, the City understands the importance of an evaluation of its growth management measures to ensure that they do not conflict with State law. The City’s 2021-2029 Housing Element Update evaluates whether these policies serve a constraint to meeting the City’s housing goals and includes related policies as appropriate.”

After lengthy analysis, the city concludes, “While Measure J adds costs, extends processing times, and has been used to halt development projects that would convert agricultural land to urban development, it is only a constraint to meeting housing needs if the city lacks sufficient infill housing sites.”

The city continues that, at that point, “there is not currently (2021) enough land designated for residential development to meet the sixth-cycle RHNA.”

However, the city simply needed to “rezone additional sites to meet the RHNA” and they were able to identify “sufficient candidate rezone sites within its limits to meet the RHNA, averting the need for a Measure J vote.”

The city was able to avoid the ultimate confrontation with the state because it identified sufficient housing to get the Sixth Cycle Housing Element approved, but multiple councilmembers and city staffers already know that getting the next one approved without going peripheral is going to be impossible.

If Elk Grove is getting sued over affordable housing, why is the state not going to go after Davis’ Measure J as a constraint on housing?

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