'I Would, If Only I Could' How Cities Can Use California’s Housing Element Law to Overcome Neighborhood Resistance to New Housing
57 Willamette Law Review 221-252 (2021)
32 Pages Posted: 22 Jul 2021 Last revised: 5 Aug 2022
Date Written: July 7, 2021
This essay is written for city officials and their allies trying to figure out whether they can use California’s baroque “housing element” planning process to mitigate local barriers to housing supply. Every eight years, cities across the state must adopt a plan, called a housing element, for their share of regionally needed housing. Though it has traditionally been an opaque, consultant-driven process, the housing element update offers real opportunities for overcoming the usual pathologies of municipal land-use politics. First, it provides city councils with an occasion, and a mechanism, to switch from piecemeal policymaking to negotiation of citywide deals on a package of rezoning and constraint-removal reforms. This is so because the “fundamental, mandatory and clear” provisions of a housing element preempt municipal ordinances to the contrary, and because amendments to the housing element must be submitted to the state’s Department of Housing and Community Development (HCD) for pre-implementation review. Second, the housing element law offers a powerful antidote to status-quo bias: cities that fail to adopt a substantially compliant plan on schedule forfeit the authority to apply their zoning code to affordable housing projects. This gives anti-housing interests an incentive to compromise on the housing element. Third, conscientious city officials can alleviate local barriers to housing supply by improving the flow of information to the state agency that reviews housing elements and certifies them for compliance.
Keywords: Land use, housing, zoning, general plan, comprehensive plan, housing element, fair share, NIMBY, YIMBY, local government, property, local politics, city politics.
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