Cleanup On Aisle NIMBY!!

The California Legislature’s new duplex bill shows that lawmakers have had it with resistance to housing.

Duplex: Not Manhattan

I wrote a few weeks ago on a Terner Center report concerning SB 9, California’s law allowing single-family lots to split and put in duplexes as a matter of right throughout the state. Essentially, the message was simple: localities were engaged in a Massive Resistance to the state mandates, throwing sand in the gears at ever opportunity. Manhattanization!!, the NIMBYs cried – because as we all know, Manhattan is known as the City of Duplexes.

Well, the Legislature has heard and it is not having it. Thus, SB 450 (Atkins) – what might called a major Cleanup Bill to make SB 9 work better. It is tired of local NIMBY whining about building more housing, and is not interested in waiting. Here is what SB 450 will do, in italics, with comments from me:

The bill would prohibit a local agency from imposing objective zoning standards, objective subdivision standards, and objective design standards that do not apply uniformly to development within the underlying zone.

This has been a way that localities have been skirting the law: putting in a whole bunch of requirements to make a lot-split financially impossible. To be sure, the original SB 9 forbade such requirements if they made the lot-split financial impossible, but never defined that, leaving a gaping hole for local governments to block it.

This bill would specify that objective zoning standards, objective subdivision standards, and objective design standards imposed by a local agency must be related to the design or improvements of a parcel.

See above. This has been part of Massive Resistance, and the Legislature is going to put a stop to it.

This bill would remove the authorization for a local agency to deny a proposed housing development if the building official makes a written finding that the proposed housing development project would have a specific, adverse impact upon the physical environment.

Allowing these sorts of findings has been a standard compromise in many housing bills over the last few years. Essentially, the Legislature has said, “okay: if there really is an environmental problem, then you can reject the project, but you have to make findings.” The problem is that localities are just making the “findings” regardless and daring applicants to sue. So the Legislature has removed this power. Perhaps a better way is to use the approach in the Housing Accountability Act, which allows these findings but also allows judges to review them de novo, with an accelerated litigation schedule and a judicial ability to award attorneys’ fees and a builder’s remedy. This provision will probably be amended.

The bill would require the local agency to consider and approve or deny the proposed housing development application within 60 days from the date the local agency receives the completed application, and would deem the application approved after that time.

As a purely legal matter, this provision uses language from California’s Permit Streamlining Act of 1977, and basically includes SB 9 as a protected law under those provisions. So if you hear localities whining that this puts too much pressure on them, it’s nonsense.

Franz Kafka: Not A Model

More to the point, this provision scotches another key way in which local governments have evaded the law. Kafka’s The Castle might be a powerful metaphor for modern bureaucracy, but it shouldn’t be the model for modern planning agencies. There is precedent for delays violating the Takings Clause, but this is more effective way to handle the problem.

The bill would require a permitting agency, if it denies an application, to provide a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.

We might call this the Calvinball Amendment. If the locality tells the applicant what to do, it does it, and then is denied, it is practically begging for a lawsuit and an award of attorneys’ fees.

And there is a very small carrot for localities:

This bill would remove the requirement that a proposed housing development does not allow for the demolition of more than 25% of the existing exterior structural walls to be considered ministerially.

This provision allows discretion for a planning agency to require modifications and mitigations, which puts it into the CEQA process.

Senate President Pro Tem Toni Atkins: Don’t Mess With The Boss

Perhaps the most important thing about the bill is its author: state Senate President Pro Tem Toni Atkins (who wrote SB 9). Atkins is effectively the Boss of the Senate: if she wants this, it will happen (and the Assembly and Governor will go along).

But there is one thing that I believe is important to add: more funding for local planning departments. Planners will have to process these things more quickly. They can do it, but should have the personnel to make it easier. They should also have the funds to do the sort of professional development to make the profession more rewarding. A former student of mine who works with local planner says that many are demoralized because the new state legislative push for housing means that they are just turning into application-processors, instead of real planners. That isn’t the Legislature’s fault: for decades, it pleaded, cajoled, begged, and incentivized local governments to plan for the future, and were greeted with, well, Massive Resistance. But that doesn’t mean we shouldn’t be working to plan better cities in the future.

For now, though, the message from Sacramento is clear to localities: Resistance Is Futile. We will see if and how NIMBYs will try to change this at the ballot box.


, , , , , ,

Reader Comments

7 Replies to “Cleanup On Aisle NIMBY!!”

  1. NIMBYs, ie, citizens in communities, are usually far better informed about what is appropriate for their community because they know what is best for their neck of the woods; in contrast, Legislators sitting in a smoke filled room in a state capitol somewhere are pretty quick to deny or ignore or discount the needs of a community.
    State Legislators jealous of their perogatives and anxious only to consolidate and secure power -perhaps to satisfy some campaign funding source, readily pass laws prohibiting communities from taking any reasonable steps to address purely local problems.

    1. People who live in a community are keenly attuned to their own interests. They are not attuned at all to the people who are looking for housing. That is the entire political process problem: the people who stand to benefit from more housing do not live in a particular city yet.

      As for state legislators jealous of their prerogatives: AHB v Livermore, which held that all cities must plan and regulate for regional needs, was handed down in 1976. The state legislature asked nicely, then begged, then pleaded, then tried to incentivize. Only after literally more than four decades did the Legislature take action. That is many things, but it certainly is not a picture of power-hungry legislators.

  2. It is so bizarre to me to see someone as intelligent as yourself falling for this Yimby nonsense.

    I truly don’t understand it.

    Can you name me a place, anywhere in this country, in which the “market” provides “affordable” housing without massive government subsidies?

    Because if you can’t, then all you are really doing is ruining the retirement of a bunch of middle class people, who thought that they had planned for the future.

    These bills are pure giveaways to the 1% – and I don’t understand why you care about them so much. Don’t they have enough already?

    Is it really worth it to you, to lose all the voters you will lose when it finally sinks in what the Leg has done?

    Say goodbye to the supermajority. And say hello to Our Neighborhood Voices!!

    I’ll be interested to see what lies the Yimbies come up with, when that hits the ballot.

    Your argument is completely lacking in economic foundation, as to “affordability.” Do you know this?

    1. The evidence for a lower level of land use regulation causing greater affordability is fairly overwhelming at this point. it is not SUFFICIENT to solve the problem, but it is necessary. I would recommend these three sources:

  3. Thank you for your response. I will look at your links.

    There may indeed be evidence that lower regs might lower costs to some marginal degree, if all else were held equal, which all else seldom seems to be, but theoretically could happen some time.

    However, this still doesn’t mean that any savings will ever get to a home buyer or renter. That’s just not how real estate works, from what I can tell.

    Further, even if that did lower costs, that would not make densification the only way to lower costs, or the best way. I mean, assuming that that is the real goal of Yimbies, which is a big leap from where I sit.

    However, I do agree that we should be doing more to organize ourselves as a society in such a way that people are not out in the cold. It is always nice to find some area of agreement! I don’t really enjoy arguing on the intergoggly.

  4. So, it depends I guess on what we are calling “affordable?”

    This from the summary of the first linked piece:

    “The article then reviews theory and empirical evidence to address each argument, concluding that, on balance, research strongly suggests that adding new homes moderates price increases and makes housing more affordable. The article acknowledges that the market will never supply adequate housing for low- and moderate-income households, meaning that local governments must fill the gap by subsidizing the construction and preservation of affordable housing.”

    So, if this is the argument you’re making, well … I guess it isn’t exactly nothing – but, it’s really close to that.

    We are supposed to turn ourselves inside out in order to get a slighly lower price increase? (Which, for the record, I still don’t agree would necessarily occur in reality. It seems to me that builders will stop building before or around the time when it becomes less profitable.)

    I cannot see my way to calling that “affordable.”

    Do you really think that is worth the high political cost?

    You know, would you put up a pro-oil legislator’s picture if they were married to an oil person? I wonder if your approach would be different in that case. Why is it okay in the one case, but it wouldn’t be in the other? I wonder if it is a blind spot.

    I mean, an oil person could just as easily say that they are looking out for Mom and Pop. And all of this activity generates carbon. Of course, so much looks different to me, perhaps I shouldn’t mention this. I am not trying to make a personal remark, about anyone. I am just wondering about it. It seems odd to me.

  5. I will see if I can get my hands on that book. (From that one page, it seemed like they left “Wall Street” out, as a possible influence, and the Great Recession. Further, people do move around. Still I will try to get a look.)

    Same with the jstor – I will see if I can find it. It’s not hard to believe that we do have a lot of regs here.

Comments are closed.

About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

READ more

About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

READ more

POSTS BY Jonathan