Today, February 1, is the state's deadline for cities to have their Housing Elements — the planning documents that dictate overall housing construction goals which serve as contracts with the state — certified. And guess what! Hundreds of towns and cities have blown the deadline.
Those of us on the sidelines of these processes would not have guessed two months ago that San Francisco was going to be a gold-star student in this Housing Element process. But to our surprise, the SF Board of Supervisors signed off on the ambitious plan last week to build 82,000 new homes in the next eight years, and today, Governor Gavin Newsom certified it.
He even put out a statement about it, saying, "Today’s announcement demonstrates our commitment to tackling this housing crisis head-on by providing unprecedented funding and resources, streamlining and eliminating bureaucratic red tape and most importantly, demanding greater accountability at the local level."
And Mayor London Breed said, "San Francisco is moving forward aggressively with not only getting our Housing Element approved, but doing the critical work to reform our laws and processes to get rid of barriers to housing and deliver the homes our city badly needs," adding that this is "essential for our economy to recover."
But elsewhere in the Bay Area, dozens upon dozens of cities have failed to meet the deadline, and theoretically, this means the so-called "builder's remedy" kicks in, meaning all zoning restrictions go out the window and developers can get new projects approved so long as they meet some basic affordability requirements.
The list of local cities now out of compliance with the state is long, and includes the cities of San Jose, Santa Rosa, Richmond, and Vallejo. The City of Berkeley had its Housing Element rejected by the state at the last minute on Tuesday.
Some cities, including San Mateo and South San Francisco, have reportedly tried to use legal "trickery" to get out of meeting their deadlines, as housing activist Sonja Trauss of YIMBY Law and two cohorts write in a Chronicle opinion piece. One "trick" is a so-called "premature adoption" of a Housing Element at the city level, which is a questionable loophole that cities hope will buy them some time, unless someone tries to call them on it.
Trauss and activists Jeremy Levine and Jordan Grimes say this is "a bit like sovereign citizens who issue themselves driver’s licenses. It’s perfectly legal to declare yourself fit to drive, but that doesn’t help you at a traffic stop."
YIMBY Law and other groups are apparently planning to sue some unnamed cities to challenge them on their "trickery," and that is likely to start happening within weeks.
Southern California cities had an earlier deadline and many cities there, including over 100 in the Los Angeles area, have already been out of compliance for weeks. As The Real Deal reports, a couple of developers are already testing the builder's remedy in SoCal — one with over 4,000 units spread across 12 projects in Santa Monica, for which plans have just been filed; and Lennar last week filed to build a 530-unit project on a golf course in La Habra, in Orange County.
Whether we see a lot of this in the Bay Area remains to be seen, and it will be a matter of weighing the political consequences for some developers, against what is to be gained in profit.
As Daniel Saver, assistant director for housing and local planning with the Association of Bay Area Governments, tells the Chronicle today, "Developers rely on political goodwill [over time]. Dropping a builder’s remedy on a jurisdiction is not a way to build goodwill."
But should it really have come to this?
As Trauss and her cohorts write, "The state has issued reasonable housing goals for cities to comply with, reflecting realistic housing needs, with nearly unlimited flexibility to plan to meet those goals. Cities don’t need to plan for revolution, but they can’t fall back on the status quo, either. "
Photo: Tolu Olubode