State Administrative Review of Local Constraints on Housing Development: Improving the California Model

69 Pages Posted: 23 Jun 2020 Last revised: 30 Sep 2021

See all articles by Christopher S. Elmendorf

Christopher S. Elmendorf

University of California, Davis - School of Law

Eric Biber

University of California, Berkeley - School of Law

Paavo Monkkonen

University of California, Los Angeles (UCLA)

Moira O'Neill

University of California, Berkeley - Institute for Urban and Regional Development; University of Virginia, School of Architecture

Date Written: April 2, 2021

Abstract

Starting in the 1970s, the West Coast states coalesced around roughly similar responses to the problem of excessive local restrictions on housing supply. Local governments were charged with making plans to accommodate needed housing, subject to review and approval by a state agency. In California, a city’s housing plan must also analyze, mitigate, and remove “constraints” to the development of housing in general. This component of the plan has received little attention, and, according to a recent report of the State Auditor, it hasn’t accomplished much. We argue that it could accomplish a lot more—if the state housing agency develops practical strategies for dealing with information asymmetries (the agency’s limited knowledge of local regulatory practice) and the substitutability of constraints (knock out one, and another can be deployed in its place).

Our response to these challenges runs on two principal tracks. First, we recommend that the housing agency rebuttably presume that local governments in expensive areas have substantial regulatory constraints if their rank by housing price (rent) exceeds their rank by rate of housing production. These local governments would be expected to provide regulatory accommodations when actors with better information about constraints—namely, developers—show that sites which the local government has represented as available for development are impractical to develop at their nominal capacity. This is a way for the state to achieve mitigation of constraints even when it’s very hard for the oversight agency to see or evaluate them.

Second, to pinpoint sources of constraint and assess compliance with applicable benchmarks, we propose that housing agency establish several new reporting and analytical requirements. The cumulative effect of local constraints should be assessed by simulating the entitlement of “prototype projects” on a random sample of parcels. Local governments also should be required to upload standardized, geocoded zoning layers and parcel characteristics; to track and report legally salient milestones for actual development applications; and to complete a questionnaire about certain types of constraints which the other approaches are likely to miss.

A workable framework for constraints review and mitigation could reduce the stakes of the state’s “housing need” determinations, and provide a model for other states seeking to liberalize the supply of housing in expensive, high-opportunity metro regions.

Keywords: housing, land use, affordable housing, fair housing, state and local government, YIMBY, NIMBY, zoning, planning, general plan, comprehensive plan, housing element

Suggested Citation

Elmendorf, Christopher S. and Biber, Eric and Monkkonen, Paavo and O'Neill, Moira, State Administrative Review of Local Constraints on Housing Development: Improving the California Model (April 2, 2021). 63 Arizona Law Review 609 (2021), Available at SSRN: https://ssrn.com/abstract=3614085 or http://dx.doi.org/10.2139/ssrn.3614085

Christopher S. Elmendorf (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-5756 (Phone)
530-753-5311 (Fax)

Eric Biber

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Paavo Monkkonen

University of California, Los Angeles (UCLA) ( email )

405 Hilgard Avenue
Box 951361
Los Angeles, CA 90095
United States

Moira O'Neill

University of California, Berkeley - Institute for Urban and Regional Development ( email )

230 Bauer Wurster Hall
#1820
Berkeley, CA 94720
United States

HOME PAGE: http://https://www.law.berkeley.edu/research/clee/about/people/moira-oneill/

University of Virginia, School of Architecture ( email )

Campbell Hall
P.O. Box 400122
Charlottesville, VA 22904
United States

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