Is It Time To Consolidate The Housing Production Laws?
- William Fulton
- Nov 28, 2022
- 4 min read
Is it time to stop passing new housing production laws and consolidate the ones we already have? No matter whether they are agree or disagree with the goals of the new laws – and there are plenty of people on both sides – local planners’ heads are spinning trying to keep up with what’s going on. And yet, pro-housing legislators keep introducing new bills, hoping to take credit for any bump in housing production. (According to some sources, part of the reason the Legislature has called for increased reporting requirements under the Annual Progress Reports is so that legislators can boast about what the laws they carried are doing. See our recent coverage on APRs here.) The truth is that it’s still too soon to say whether these laws are working. But it may be time to consider whether they should be consolidated in a way that simplifies the housing production effort. Consider two possibilities, one involving the newly powerful and controversial “Builder’s Remedy” (see previous CP&DR coverage here and here) and the other involving SB 9. Although it’s been embedded in law for more than 30 years, the Builder’s Remedy caught everybody by surprise when it was heavily used in Santa Monica earlier this year because the city’s housing element had not been approved yet by the state Department of Housing & Community Development. But should developers be able to, essentially, build an unlimited amount of housing (assuming affordable housing goals have been met) because the Housing Element hasn’t been approved? After all, there are already other laws that provide the ability to build above allowed zoning while providing affordable housing under certain circumstances – specifically, the Density Bonus Law, which has proven to be very powerful in its own right in recent years. In fact, UC Davis law professor Chris Elmendorf, perhaps the most insightful analyst of the new housing laws, has proposed rolling the Builder’s remedy into the Density Bonus law. In his invaluable primer on the builder’s remedy, published last spring, Elmendorf proposed eliminating the Builder’s Remedy and replacing it with a 100% density bonus (with some alternatives) in cities that are do not have compliant housing elements. He proposes calling the new option the “noncompliant-city” density bonus. “This reform would reasonably limit the size of builder’s remedy projects, in keeping with the Least Cost Zoning Law’s norm that cities not be forced to zone parcels in already-developed residential areas for more than twice the density of adjoining parcels,” he writes. “This reform would also resolve the conflict between the builder’s remedy and the HAA’s (Housing Accountability Act) savings clause for ‘development standards,’ as the Density Bonus Law has a well-established framework governing which standards may be applied to a density-bonus project. Specifically, cities must waive any development standard that ‘physically precludes’ the density of the project (unless it’s necessary for health/safety) and the developer may claim other incentives and concessions depending on the share of affordable units in the project. (Gov’t Code § 65915(d) & (e).)” Significantly, he adds: “It’s important that the noncompliant-city density bonus be substantially larger than the regular density bonuses available in cities whose housing plans comply with state law. The lawmakers who created the HAA builder’s remedy back in 1990 envisioned it as a powerful inducement for cities to achieve housing-element compliance. It will only have this effect if local officials fear being forced to approve projects they want to deny. In other words, why deal with these two laws when you can combine them, still provide some options for developers in noncompliant cities, and resolve conflicts between the laws at the same time? Then there’s SB 9, the law that makes it easier to build two houses on each single-family lot and split each single-family lot in two. This law really freaked out local governments and local planners when it passed. And there was a lot of analysis, including this report from the Terner Center that says SB 9 would make 700,000 new homes feasible in California that wouldn’t have been permitted previously. But, as far as I can tell, SB 9 isn’t getting a lot of traction. Part of the reason may simply be: Why bother with SB 9 when, under current law, you can drop an accessory dwelling unit in your backyard with ministerial approval? The truth of the matter is that building a duplex or a small-scale multifamily project is way more complicated than adding an ADU – and may not be worth the additional trouble. Indeed, there’s been a lot of talk about how the ADU movement will simply consume SB 9. (This may be especially true in San Diego, where the “endless ADU law” allows, essentially, construction of a small multifamily building on a single-family lot so long as half the units are affordable.) There’s a difference, of course: Building a duplex is not the same as dropping an ADU in your back yard, and the lot split part of SB 9 may have value beyond simply adding an ADU to an individual single-family parcel. But you get the idea. With so many laws having been passed in the last few years, it may be time to stop and take a breath – not just to give locals a chance to catch up, but to streamline the laws so that the whole housing production effort takes on a simpler and more elegant cast.
