Making It Work: Legal Foundations for Administrative Reform of California's Housing Framework

Abstract

Since 1980, California has had an ambitious planning framework on the books to make local governments accommodate their fair share of “regional housing need” “for all income levels.” The framework relied, however, on a rickety and complicated conveyor belt for converting regional housing targets into actual production. Superintending the conveyor belt was an administrative entity, the Department of Housing and Community Development (HCD), whose rules had no legal effect, and whose judgments about the adequacy of a local government’s housing plan received virtually no deference from the courts. This paper contends that HCD’s position has been fundamentally transformed by a series of individually modest but complementary bills enacted from 2017-2019. HCD now has authority to strengthen, simplify, and supplement the conveyor belt in ways that would have been (legally speaking) unimaginable just a few years ago. We argue (1) that HCD may adopt the “expected yield” definition of site capacity, which would more than the double the amount of zoned capacity that local governments must provide; (2) that HCD may promulgate metrics and standards for whether the supply of housing within a local government’s territory is substantially constrained; and (3) that HCD may insist, as a condition of housing-plan approval, that poorly performing local governments adopt major, substantive reforms to local development processes, regulations, and fees. Though it’s doubtful that the department could mandate particular constraint-mitigation measures, such as ministerial permitting, the department could incentive their adoption by announcing compliance safe harbors. Our objective in this paper is to lay the legal foundation for such departmental initiatives, not to say how they should be carried out. In future work, we plan to offer more concrete policy recommendations, and to relate our recommendations to evidence of local-government and HCD practice in the writing and reviewing of housing plans.

Keywords: land use, zoning, affordable housing, administrative law, planning, YIMBY, fair housing, affirmatively furthering fair housing