By David M. Greenwald
Davis, CA – Chris Elmendorf is a Professor of Law at UC Davis, and yesterday he made a rather provocative tweet that generated a huge and very interesting discussion: “Want (another) lesson in how CA cities abuse the state’s Housing Element Law? Hard to do better than the place I teach, Davis, which just released its draft housing element for 2021-29.”
Back in December, Elmendorf with some colleagues at UCLA and Berkeley co-authored a paper, “I Would, If Only I Could” – How Cities Can Use California’s Housing Element to Overcome Neighborhood Resistance to New Housing.
In it they argue, “City councils are on the front lines of California’s housing crisis. But local lawmakers who understand that California needs to accommodate a lot more housing are stuck in a political bind. Wherever they might put new housing, neighborhood groups spring up and oppose it. The same groups will have money to spend or voters to turn out at the next election. What’s a well-meaning city councilperson to do?”
They believe that the housing element process itself provides a way forward.
“This process hasn’t always worked well in the past, but the legislature and HCD have recently strengthened the framework. There are now substantial political advantages for city officials to pursue pro-housing policies through their housing element, rather than through the normal municipal lawmaking channels,” they write.
They put forward three points. First, “The alternative is losing local control” because, under the new state law, “cities that fail to adopt a timely, substantially compliant housing element forfeit their authority to deny a broad class of housing projects on the basis of the city’s zoning code and general plan.”
Second, “Cities normally make land use policy on a piecemeal, project-by-project basis. This tends to privilege the neighbors who have the most at stake in each project. Cumulative and citywide impacts get short shrift. The housing element update lends itself to a different mode of land use policymaking: the hashing out of citywide deals, informed by long-term citywide and even regional perspectives.”
Finally, they note, “A paradox of the Housing Element Law is that it requires state bureaucrats who have little information about local conditions to evaluate a housing element’s claims about ‘realistic’ zoned capacity, and about the existence and severity of other local constraints on housing development. But this also presents an opportunity for well-meaning city councilpersons, who can ask their planning departments or consultants to gather data and publicize local barriers. If the city is revealed to have problems, HCD may insist on bold programs for upzoning and constraint removal as a condition of housing element certification.”
That gets us to Elmendorf’s tweet stream from Sunday.
Davis, as he points out, is an “affluent college town” and “a bedroom community for Sacramento’s well-educated elite.”
He writes, “As one might expect, given its demographics, Davis is also NIMBY central, with a passel of voter-adopted growth controls and the only city zoning code of which I’m aware that puts agriculture atop the hierarchy of uses.”
Per ACS, “Davis’s housing stock is ~static, growing a paltry 0.9% over 8-yr period from nadir of Great Recession, compared to 4% growth in Sacramento MSA as a whole.”
He writes: “If the most desirable & expensive city in region is growing at 1/4 the regional rate, that’s a big red flag.”
He also attacks the notion that Davis looks somewhat between comparing it to regional growth (5% vs. 6%) by noting, “But regional number is biased down b/c of missing data. And Davis, given prices & transit, should be growing *faster* than regional avg.”
He continues: “Davis’s state-assigned ‘RHNA’ (housing target) for next 8 years is 2075 units, roughly twice its target for the last cycle and equivalent to 8% growth over the period. Still paltry, but better.” For comparison, LA area cities are planning for 20% growth.
“So, how does Davis propose to accommodate 2075 new homes? Almost exclusively through development proposals that city describes as ‘planned or approved’” he writes.
He is skeptical on this point: “But is it likely that all 2409 of these ‘planned OR approved’ units will actually be approved and built over next 8 years, roughly doubling Davis’s growth rate? Count me skeptical…”
He writes that “the city’s table of ‘planned OR approved’ units hints at problems.” First that more than half are still under review and not approved, and projects approved as far back as 2004 and 2009 still have not been constructed.
Furthermore, he notes, “The housing element provides no information about *what share* of the 2409 ‘planned or approved’ units can realistically be expected to built during planning period. Instead, it naively presumes that all 2409 will be built. “
“You might think, as a gut check, that Davis would at least report what share of the 1041 ‘approved and pending’ units counted toward RHNA in its *previous* housing element were actually developed during the previous planning period,” he continues. “You would be wrong.”
Even with these generous assumptions, he notes that even with this assumption that 100 percent of those planned or approved units would be approved falls short as the low income units, even with their generous projects leave a shortfall.
He writes: “Thus, city must rezone additional land at statutory density of 20 du/acre.
“Davis’s response?” he tweets. “We’ll figure out what to rezone some other time.”
For those wondering, he finally makes reference to Measure J: “The gems keep coming. City must analyze, & mitigate or remove ‘constraints’ to development. Davis is littered with ’em, including annual growth caps, voter-approval rules, restrictive zoning, a 35% IZ requirement (anti-rental), & more. So what does city say about this?”
The city notes: “Most projects are infill projects that require a General Plan Amendment and zoning amendment.” The city explains, “This is largely a result of the nature of the built-out community, as opposed to a community with a large supply of undeveloped greenfield land that can be more comprehensively planned.”
There are a number of problems with this analysis, one of which of course that this limitation is self-inflicted. As Elmendorf points out, “Since when does ‘the nature’ of a single-family neighborhood prevent city from planning for anything else?”
The city also argues, “The City has experienced steady development of both residential and non-residential uses, indicating the need for a General Plan Amendment and/or zoning amendment does not constrain development.”
That statement is almost laughable (actually it probably is laughable). Elmendorf points out, “A statement made w/o any reference to normal or healthy rate of growth for city with Davis-level prices & transit.” But I would probably go further and question the accuracy of such a statement. Furthermore we have largely used up the empty parcels in town—which means that growth is largely going to be limited in the future to either very expensive re-development or highly problematic peripheral growth.
He argues: “By requiring GP amendment and rezoning for most projects, Davis vitiates CA’s Housing Accountability Act, which in most circumstances protects only plan-and-zoning compliant projects. “
He continues: “City does acknowledge that its IZ ordinance requires a new feasibility study to comply w/state law, and that one quantitative growth control has been preempted. But city denies that anything else is a ‘constraint’ requiring mitigation.”
Finally he adds, “Finally, there’s the new mandate that housing elements ‘affirmatively further fair housing.’”
He writes: “The gist of Davis’s response: we’re not too segregated, and all our neighborhoods are ‘high opportunity’ relative to region. So, we’re good.”
I had not had a chance to dive into the recently released Housing Element report, but this is a pretty solid analysis from someone who is clearly involved in this issue on a broader scale.
In his co-authored paper, they conclude: “The Housing Element Law is not a panacea for California’s housing woes. But deployed conscientiously, it can help soften the political dilemmas now faced by local government officials who would like to do their part.” But not in the direction they (the city of Davis) are going.
—David M. Greenwald reporting
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In other words, City Councils should shove dense housing down the throats of the NIMBY neighborhoods that contain the people that elected them. How sweet.
Note: no one wants to be next to some blob built next to them, so NIMBY is a pejorative for those unlucky enough to lose the lottery on some blob development going up next to them. And those not so afflicted can yell ‘NIMBY’ at them. And by the way, this sort of denitrification isn’t happening in the exclusive, rich enclaves in town. Ever. Mark my words.
Seems the guy isn’t much of a fan of Measure JeRkeD. Do you (DG) “have the same issue with” him that you have with Glick and I, on that issue?
I think you are arguing the opposite point of the law professor
He’s a JeRkeD fan?
Doesn’t appear so. He appears to be arguing against a strategy of ignoring greenfield development in fact.
A pro affordable housing advocate is always only one project away from being a NIMBY.
These people would be classified as YIYBY, Yes In Your Back Yard.
Perhaps Alan is speaking from the point of view of someone who supported the “blobification” of our very own neighborhood in the name of cooperative planning and student housing. Alan and I share the geographic fortune of being within the direct line of vision of the Lincoln 40. Despite its dramatic change in the appearance of our portion of the neighborhood, being just across the tracks from our homes, we both supported the project.
IMO, our support of student housing may have been a poor choice as it is one part of a binge of dorm housing when housing of general interest might have been a better investment for the city overall. I would say the same for the senior “associated with Davis” development and all others that restrict who can inhabit any given project other than “little a” affordable housing.
I do wish to clarify — I never supported this project, I simply never opposed it because the developer got a hold of the neighborhood, visited personally, addressed all our concerns, and signed an MOU to address specific issues to the best of their ability. Such cooperative and outreach goes a long way. I don’t like it, but I like it one whole heck of a lot more than if it had been rammed down out throats, which is the tactic Professor [Elmendorf] is advocating for.
I wonder what this author (a “denizen of San Francisco” – per the referenced Twitter page) as well as those who follow him on Twitter) thinks of efforts like the following. (Strange, I always thought of San Francisco as being more “privileged” than Davis, not to mention white male law professors, themselves.)
https://www.ocregister.com/2021/01/09/more-cities-than-ever-are-protesting-rhna-allocation-of-homes-theyve-been-told-to-plan-for/
By the way, California lost population last year – first time in its entire history.
Just noticed the caption under the photo in the article I posted:
So, I guess this professor (along with the YIMBY groups) have their work cut-out for them. For reasons unknown, given that the state is losing population.
Of course a big reason that state is losing population is because of housing
You say that like it’s a bad thing. That’s actually the way our system is designed.
It’s also a reason that many of those in Davis cannot return to the Bay Area. (Except apparently for someone as privileged as the author of this article.)
But one has to look at what’s creating the demand for housing in a given location, in the first place. There are places (including within California) that essentially don’t grow at all.
It’s about pursuit of endless “economic growth”. Have you ever actually listened to Greta Thunberg, regarding that part?
In any case, I’m gathering that this author would have a “concern” with 97 percent of communities, some of which are likely “far worse offenders” in the view of someone like him.
https://www.ocregister.com/2020/09/03/southern-california-cities-can-soon-object-to-giant-increases-in-housing-goals/
Marin county is also fighting this.
https://www.mercurynews.com/2021/01/30/marin-supervisors-push-back-against-huge-state-housing-mandate/
And for those who are concerned about this issue in general, I have found one group that seems to be fighting it:
Livable California – We are Your Voice in Sacramento
That’s the thing – you oppose housing because you want the population to shrink. As long as you are honest about that… we just need to be clear.
I just want Covid-19 to do its job and make new housing unnecessary. Honest enough for ya?
Do you have a source for that? Or maybe clarify what you mean?
Census data here seems to show California population growth between 2010 and 2020.
https://wolfstreet.com/2021/05/09/california-housing-market-first-ever-population-drop-meets-biggest-home-construction-boom-since-2008/
The dip in California’s population is being reported with census news, hence the loss of one congressional seat. This is from CNN.
Note bolded portion to show the irrelevance of this with respect to housing growth issues in our region.
https://www.cnn.com/2021/05/07/us/california-population-drop/index.html
The Daily Democrat just published this story:
Yolo County population decreases along with state
It doesn’t quantify Davis specifically. I wouldn’t be surprised if there has been a pandemic decrease in population, though, especially because of UCD and online classes, or students choosing to take a year off.
So, this author is skeptical that the planned and approved projects will actually get built. Why? No explanation. His solution? Plan and approve more. Those new ones will get built, though? He’s not skeptical about them? Makes no sense.
Seems like it’s just an argument to build more, pretending to be based on an analysis while really just making things up.
No explanation? He did explain.
I guess we’d have to examine each of those approved/planned proposals individually, to determine that. I know of one significant one (Chiles Ranch – a sizeable internal open space) which has been sitting idle for more than a decade, with no explanation. I’ve brought that one up a number of times on here, but you’ve expressed no interest.
And we’d also have to look at what’s been built and/or under construction (e.g., Sterling, Grande, Creekside, Lincoln 40, The Cannery, etc.). And, how that met or exceeded the last allocation, or how it meets the current allocation.
Does he also doubt that Bretton Woods and Nishi would be built?
I know of no presumption whatsoever that all RHNA requirements, in all cities across the state will be built within a specified time period. Again, it appears that 97% of communities are not doing so. Cities do not build these developments, themselves.
Is he suggesting that cities themselves “pencil out” (and report to the state) developer margins for each potential proposal? In other words, he’s suggesting that cities now have to guarantee that all proposals would be profitable (at some undetermined level/markup) as part of the RHNA process? Really?
But again, what exactly is he proposing to do that (he) would not view with “skepticism”?
Just a reminder: there is a limitation on comments per article—five comments per article per commenter.
Chris Elmendorf makes an assumption as the foundation of his article. Specifically, that the State through HCD and RHNA requires each jurisdiction to actually complete the erection and occupation of a specific number of residential units. To the best of my knowledge, that is an incorrect assumption. Because the majority of property within any jurisdiction is privately owned, rather than owned by the jurisdiction itself (in our case the City of Davis), the Constitutional property rights of the individuals who own each parcel come into play. As a result, aligning the zoning status of a particular parcel with a particular housing type and density does not determine the timing of when that particular parcel will actually have erection and occupation activities. Unless we want to take away those Constitutional rights, the kind of certainty that Mr. Elmendorf advocates for will be elusive.
The Public Review Draft Housing Element document should be reviewed by everyone with a connection to Davis (whether a Bretton Woods connection or otherwise). That document can be found HERE on the City website. Table 3 on page 11 provides some specific data that addresses some of the concerns Mr. Elmendorf raises. As you can see from the graphic below, the private owners of property in the City of Davis received building permits to commence construction on 1,483 residential units during the most recent RHNA period (2013-2021) with one year left to go in that RHNA period. The RHNA Allocation for the whole period was only 1,066. So, contrary to Mr. Elmendorf’s contention, Davis more than met its “fair share,” in fact exceeding it by 39%.
With the residential units at Nishi, Lincoln 40, Sterling, Plaza 2555, Davis Live, 3820 Chiles Road, and University Commons soon to come on line, plus the residential potential of the Downtown Plan Update, I suspect the 2,075 new residential units will easily be met in the 2021-2029 Housing Element period. How many of those additional units will be in the Low and Very Low income levels remains to be seen.
Uh huh. Given the current costs of construction I don’t think you should be counting chickens quite yet. The projects that have already started construction are likely to be completed, while the rest may never break ground. With Alan M’s favorite ordinance on the books though, rents in town may well rise high enough to justify completion of a few more. Nishi? I’ll believe it when they start construction of the railroad undercrossing.
They can just extend Olive Drive in the meantime so they can get something built.
Why would they build apartments that cannot be occupied? Yes, they can begin work on the infrastructure, but proclaiming the project will be on line soon is a fantasy.
Mome . . n . . . t . . . . u . . . . . m . . . . . .
Might want to learn another word… financing. This isn’t monopoly money, they actually have to show a quick ROI in order to finance building the apartments.
Mark, you may be right about Nishi. I painted with a bit too broad a brushstroke. However, because the units at Nishi are entitled, they may nonetheless count in the 2021-2029 period.
However, it is possible that HCD may disqualify some or all of the Nishi units because they are being rented by the bed, and therefore are considered to be “group housing.” That is an ongoing topic of discussion between the City and HCD … a topic that probably should have been clarified/resolved prior to the publishing of the Baseline Features in 2016 and 2018. I suspect that HCD’s communication to the City is reasonably close to the well-traveled office sign, “Failure to plan on your part, does not constitute an emergency on our part.”
“Most projects are infill projects that require a General Plan Amendment and zoning amendment.” The city explains, “This is largely a result of the nature of the built-out community, as opposed to a community with a large supply of undeveloped greenfield land that can be more comprehensively planned.”
“There are a number of problems with this analysis, one of which of course that this limitation is self-inflicted.”
I’ve pointed this out many times.
Also the Greenfield issue is pertinent to infill. Without expanding the city limit the only option is encroachment through infill and increased density.