St. Helena City Council
May 1, 2023

BEYOND THE DOUBLE VETO
Growth Management Act, the three West Coast states (and Florida) had all embraced the following principles. First, local governments have a duty to plan, on a state-mandated cycle (generally seven to ten years) 20 , for enough new
housing to accommodate projected population growth. 12 1 Second, local comprehensive plans, or at least their "housing elements," must be submitted to not mandatory until the mid 1980s. See Nancy Stroud, A History and New Turns in Florida's Growth Management Reform, 45 J. MARSHALL L. REv. 397, 400 06 (2012). 120. CAL. Gov'T CODE § 65588 (West 2019) (eight-year cycle); OR. REV. STAT. § 197.629 (2017) (sevento ten-year cycle); FLA. STAT. § 163.3191 (2019) (seven-year cycle); WASH. REV. CODE § 36.70A. 130 (2019) (eight year cycle).
121. In Washington, "[c]ounty officials .. select[] a 20-year... planning target from within the range of high and low prepared by [the state finance agency].... [T]hen within each county, population planning targets for cities, towns, and unincorporated areas are developed among all affected local jurisdictions." Growth Management Act County Projections, OFFICE OF FIN. MGMT., https://www.ofm.wa.gov/washington-dataresearch/population-demographics/population-forecasts-and-projections/growth-management-act-countyprojections (last visited Nov. 6, 2019). The housing element of the plan must "[i]nclude[] an inventory and analysis of existing and projected housing needs that identifies the number of housing units necessary to manage projected growth .. mak[ing] adequate provisions for existing and projected needs of all economic segments of the community." WASH. REV. CODE § 36.70A.070(2) (2019). In Oregon, local governments must plan for "needed housing" "in one or more zoning districts .. with sufficient buildable land to satisfy that need." OR.

REV. STAT. § 197.307(3) (2019). "Needed housing," in turn, [M]eans all housing on land zoned for residential use .. that is determined to meet the need shown for housing within an urban growth boundary at price ranges and rent levels that are affordable to households within the county with avariety of incomes, including but not limited to households with low incomes, very low incomes and extremely low incomes.

OR. REV. STAT. § 197.303(1) (2019). "Needed housing" is determined using a 20-year population forecast. See OR. REV. STAT. § 197.296(2) (2019) (requiring cities to adjust growth boundaries and/or density to accommodate needed housing per 20-year forecast); OR. ADMIN. R. 660-024-0040 (2019) ("The determination of 20-year residential land needs for an urban area must be consistent with the appropriate 20-year coordinated population forecast."). In 2013, Oregon's legislature assigned responsibility for making the associated population-forecast projection to the Population Research Center at Portland State University (for most of the state) and to the Metro regional government (for the Portland area). See Edward J. Sullivan, Population Forecasting and Planning Authority, 48 URB. LAW. 47, 62 64 (2016). The California process for determining housing need is described in the text accompanying supra notes 119 120, and infra note 122. But see also CAL.

GOV'T CODE § 65584 et seq. (West 2019); CAL. AFFORDABLE HOUS. LAW PROJECT, CALIFORNIA HOUSING ELEMENT MANUAL 18 21 (3d ed. 2013) [hereinafter CAL. MANUAL]. In Florida:

The plan must be based on at least the minimum amount of land required to accommodate the medium projections as published by the Office of Economic and Demographic Research for at least a 10-year planning period .... Absent physical limitations .. population projections for each municipality, and the unincorporated area within a county must, at a minimum, be reflective of each area's proportional share of the total county population and the total county population growth.

FLA. STAT. § 163.3177(f)(3) (2019).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
a state agency for review.'22 Third, local land-use regulations and by extension, local permitting decisions must conform to the plan. 1
23 Population forecasts are made by a state agency and forwarded to local planners. 1
24 Oregon, Washington, and Florida instruct their local governments to convert these population forecasts into estimates of needed housing for "all economic segments of the community." 12
California goes a step further. 126 In 1980, the state legislature enacted a framework for periodically establishing regional housing quotas through negotiations between the state Department of Housing and Community Development (HCD) and regional associations of local governments, the socalled Councils of Governments. 1 27 Though HCD ultimately determines the size
122. Oregon requires local governments to have their comprehensive plans and implementing regulations "acknowledged" by the state agency. See Sullivan, supra note 119, at 370 71. This process was completed by 1986. Id. Amendments to an acknowledged plan must be submitted for state review. See OR. REV. ST. § 197.610 (2019). Additionally, plans coveing urban areas (with a few exceptions) must be updated and submitted for state review every seven to ten years. Id. § 197.629. For a comparison of the post-acknowledgment amendment and periodic review processes, see Sullivan, supra note 109, at 370 72, 392 93. In California, local governments must submit draft housing elements and amendments to Housing and Community Development (HCD) for review. If HCD objects, the local government may enact the element or amendment anyway but must make findings regarding why it believes the element substantially complies. HCD then makes a written determination about substantial compliance and if it finds noncompliance, may refer the matter to the Attorney General for enforcement. See CAL GoV'T CODE § 65585 (West 2019); See CAL. MANUAL, supra note 121, at 15. In Washington, plans and plan amendments must be submitted to the state Department of Commerce for review at least sixty days before adoption. See WASH. REV. CODE § 36.70A. 106 (2019); WASH. ADMI. CODE § 365-196- 630 (2019). If the department believes that the plan is inadequate, it may initiate a proceeding before the Growth Management Hearing Board. See WASH. REV. CODE § 36.70A.280 (2019). In Florida, plans and plan amendments must be submitted to the state planning agency (and several other agencies) for comments after the local government's first public heaing. After adoption of the plan or plan amendment, the final package is sent back to the state agency, which has forty-five days to make a compliance determination If the agency finds the plan non-compliant, it may initiate proceedings before the Division of Administrative Hearings, which adjudicates plan validity. See FLA. STAT. §§ 163.3184(4)(e)(4), 163.3184(5) (2019). For a history of earlier incarnations of the Florida plan-review process, see Stroud, supra note 119 (offering a history of this background).
123. California's consistency requirements are codified as sections 65860, 66473.5, and 65583, subsection I of the California Government Code. Regarding Florida, see Stroud, supra note 119, at 400-01, 414 (describing emergence of consistency requirement in the early 1970s, and its preservation even during the 2009 2011 "counter-revolution" against strong state oversight of local planning). In Washington, the courts seem somewhat ambivalent about the consistency requirement. Compare Citizens for Mount Vernon v. City of Mount Vernon, 947 P.2d 1208, 1214 (Wash. 1997) (deeming the comprehensive plan only a "guide" or a "blueprint"), with King Cty. V. Cent. Puget Sound Growth Mgmt. Hearings Bd., 979 P.2d 374, 380 (Wash. 1999), as amended on denial of reconsideration (Sept. 22, 1999) (holding that urban growth boundaries designated in plan are binding).

Oregon has strong consistency requirements, enforceable via "work task" orders that the state land-use agency may issue to local governments. See OR. REV. STAT. § 197.636 (2019); Liberty, supra note 119, at 10372. 124. In California and Washington, the population projections are made by the state's department offinance.

See CAL. GOV'T CODE § 65584 et seq. (West 2019); WASH. REV. CODE § 43.62.035 (2019). In Oregon, they are made by a state university, see section 195.033 of the Oregon Revised Statutes, and in Florida, they are made by the state's Office of Economic and Demographic Research, see section 163.3177 of the Florida Statutes. 125. See FLA. STAT. § 163.3177(f)(3); OR. REV. STAT. §§ 197.296(2) & 197.303(1); WASH. REV.

CODE § 36.70A.070(2).
126. See generally CAL. MANUAL, supra note 121, at 18 21. 127. 1980 Cal. Stat. ch. 1143 (adding CAL. GOV'T CODE § 65580 et seq.). 102 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
of each region's quota (the "regional housing needs assessment," or RHNA), the Councils are invited to provide information and propose methodologies for translating the state's population forecasts into housing quotas.128 RHNAs are subdivided into four affordability bands: housing units to be produced over the planning cycle for households of very-low, low, moderate, and above-moderate incomes, respectively 29 ("above-moderate" is code for market-rate housing). 3 0 Councils of Governments then allocate their region's quotas among the member governments.' 3' This roughly resembles the process of determining and then allocating regional housing need in New Jersey, except that New Jersey considers only the need for subsidized housing, and New Jersey allocations have been made by courts or agencies, rather than by confederations of local governments.
132
Beyond the essential commonalities noted above-periodic planning to accommodate state-forecasted population growth, state review of the plan, and a duty to conform local law to the plan-the housing frameworks of the West Coast Model states differ in many important particulars.

Consider how the planning mandate is enforced. In all of the West Coast Model states, local governments that fail to adopt a compliant housing element, on the state's timeline, may lose access to certain streams of funding. 133 In Washington, this appears to be the only consequence, and it is suffered only in the discretion of the governor. 1
34 In California and Oregon, local governments
that do not maintain a compliant plan also put their regulatory autonomy at risk.

California's courts and Oregon's Land Conservation and Development Commission (LCDC) have enjoined non-compliant local governments from issuing land-use permits. 3 5 In Oregon, permits issued by local governments that 128. Id.
129. Id.
130. Darrel Ramsey-Musolf, Evaluating California's Housing Element Law, Housing Equity, and Housing Production (1990 2007), 26 HOUSING POL'YDEBATE 488, 491 (2016). 131. CAL. Gov'T CODE § 65584.03 (West 2019).
132. In New Jersey, "regional need" is the sum of the region's "present need" (defined as substandard or too-expensive housing now occupied by the region's poorer residents) and projected "future need" (new housing for new poor families, per projected population growth). The "gap" between a local government's prior-round affordable housing quota and its actual production during that planning cycle is also carried forward. See In re Declaratory Judgment Actions Filed by Various Municipalities, 152 A.3d 915 (N.J. 2017). 133. Regarding Washington, see WASH. REV. CODE §§ 36.70A.340 .345 (2019); Washington Department of Commerce Growth Management Submitting Materials, WASH. STATE DEP'T COMMERCE, https://www.commerce.wa.gov/serving-communities/growth-management/washington-department-ofcommerce-growth-management-submitting-materials/ (last visited Nov. 6, 2019). Regarding California, see DEP'T HouS. AND CMTY. DEV., INCENTIVES FOR HOUSING ELEMENT COMPLIANCE (2009), http://www.hcd.ca.gov/conmmunity-development/housing-element/docs/loan grant hecompO 11708.pdf Regarding Oregon, see sections 197.319 through 197.335 of the Oregon Revised Statutes from 2017 and section 660-045 of the Oregon Administrative Rules from 2017; see also Sullivan, supra note 119, at 391 (noting that these powers in Oregon are "now largely unused")
134. See WASH. REV. CODE §§ 36.70a.330, 36.70a.340, 36.70a.345 (2019). 135. Regarding California, see Ben Field, Why Our Fair Share Housing Laws Fail, 34 SANTA CLARA L.

REV. 35, 43-44, 47 50 (1993) (discussing cases). Regarding Oregon, see sections 197.319 through 197.335 of the Oregon Revised Statutes from 2011 and section 660-045 of the Oregon Administrative Rules from 2011.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
lack an approved comprehensive plan may also be invalidated for not conforming to the state's nineteen land-use goals. 136 Though no West Coast Model state has established a full-blown builder's remedy to enforce the planning duty, 137 California has recently taken some steps in this direction, 138 and Oregon's state-oversight body may remedy planning defaults by ordering development projects approved. 1
39 The West Coast Model states also differ in how they superintend plan implementation. In Oregon, the LCDC has authority to review actions and inactions by local governments at the implementation stage, and to issue prescriptive "work task" orders if the LCDC deems implementation inadequate. 40 The commission also has broad rulemaking authority, which it has used to establish minimum zoning densities. 141 By contrast, Washington's oversight entity, the Growth Management Hearing Board (GMHB), has no authority to establish minimum densities or any other "public policy," and its remedial powers are very limited. 142 All it can do is forward its findings of noncompliance to the governor, who then decides whether to cut funding from the disobedient local government. 143 In California, HCD lacks general rulemaking authority and has had virtually no oversight role with respect to plan implementation, 1
44 although recent reforms are starting to change this.145 California and Oregon have taken some steps to thwart local evasion of the plan at the project-permitting stage. Both states set time limits within which local 136. Local land use actions, such as rezonings and permit decisions, may be challenged before the state's Land Use Board of Appeals (LUBA), and are reviewed for consistency with the state's land use goals unless the jurisdiction has adopted an LCDC-approved land use plan. See OR. REV. STAT. § 197.835(5) (2017); Liberty, supra note 119, at 10371.
137. That is, an expedited, burden-shifting procedure for developers in jurisdictions without an approved plan to bypass local ordinances and obtain permits from a state decision maker. 138. See ROBERT C. ELLICKSONET AL., LAND USE CONTROLS: CASES AND MATERIALS 69 72 (4th ed. 2013). 139. More specifically, the LCDC may order "such interim measures as the commission deems necessary to ensure compliance with the statewide planning goals." OR. REV. STAT. § 197.636 (2017). [It] shall, as part of its order, limit, prohibit or require the approval by the local government of applications for subdivisions, partitions, building permits, limited land use decisions or land use decisions until the plan, land use regulation or subsequent land use decisions and limited land use decisions are brought into compliance.

OR. REV. STAT. § 197.335 (2017) (emphasis added). Oregon's Land Use Board of Appeals also has authority to order projects approved. See OR. REV. STAT. § 197.835(10) (2017); Walter v. City of Eugene, 73 Or. LUBA 356, 362, aff'd, 383 P.3d 1009 (Or. Ct. App. 2016).
140. See OR. REV. STAT. § 197.636(2) (2017); see, e.g., BILL KLOOS, FAIR HOUSING COUNCIL OF OREGON PLANNINGFORHOUSING: DON'T FORGET THE BASICS 18 (May 15, 2008) (citing LCDC Compliance Order (Aug. 23, 1982) and StaffReport (Aug. 19, 1982) at 28-19); id. (citing LCDC Work Task Order 02-WKTASK-001412, at 4 (June 27, 2002) (faulting planned development overlay zoning for insufficient clarity). 141. OR. ADMIN. R. 660-07-035 (adopted 1981).
142. Viking Properties, Inc. v. Holm, 118 P.3d 322, 331 (Wash. 2005) (en banc). 143. See WASH. REV. CODE §§ 36.70A.330, 36.70A.340, 36.70A.345 (2019). 144. See Baer, supra note 119, at 56-60; CAL. GOV'T CODE § 65585(a) (West 2019). 145. See infra text accompanying note 211.
104 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
governments must act on permit applications, 146 and local governments may deny permits only on the basis of objective standards (Washington and Florida do not have such requirements). 147 In California, the housing element must include an analysis of constraints to the "development of housing for all income levels,"' 148 and a "schedule of actions" to "[a]ddress and, where appropriate and legally possible, remove constraints."' 149
Finally, the West Coast Model states vary in the strength of their commitment to periodic plan revision. At one end of the spectrum is California and, arguably, Washington. California, as we have seen, periodically assesses regional housing needs and requires local governments to update their housing elements shortly after receiving RHNA allocations. 50 In Washington, local governments must update urban growth boundaries on the official cycle if the state's forecast of local population growth has changed since the last round.' 5 '
In Oregon, by contrast, the theory of periodic plan revision has given way to a practice of ad-hoc amendment. 5 2 Oregon, by statute, requires most urban communities to revise their plans on a regular cycle,'53 but LCDC regulations have exempted local governments that choose other, simplified procedures for plan amendments. 5 4 Ed Sullivan, a veteran of the Oregon scene, reports that periodic review outside of the Portland metro area has become virtually a dead letter, and that piecemeal plan amendments provide little opportunity for LCDC to examine local housing policies.' 55 Florida's abandonment of periodic, statesupervised plan revision has been even more thoroughgoing. 1 56 146. See CAL. GoVT CODE § 65950 (West 2019) (requiring final action on housing development permits within 60-180 days of completion of environmental review); OR. REV. STAT § 227.178 (2017) (requiring final action on development permits, including resolution of all appeals, within 120 days of date application is deemed complete); OR. REV. STAT § 197.311 (2017) (requiring final action including resolution of internal appeals within 100 days on certain types of affordable housing projects). 147. See OR. REV. STAT. § 197.307(4) (2017) ("Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing [onbuildable land]."); Honchariw v. Cy. Of Stanislaus, 132 Cal. Rptr. 3d 874, 875 76, 880 (2011) (discussing the objective standards requirement and tracing it to a bill enacted in 1999).
148. CAL. GOVT CODE §§ 65583(a)(5) 65583(a)(6) (West 2019). 149. CAL. GOVT CODE § 65583(3) (West 2019).
150. See supra notes 122, 126 131 and accompanying text. 151. See Clallam Cty. V. Dry Creek Coal., 255 P.3d 709, 712 (Wash. Ct App. 2011) ("The Growth Board determined that a county is required to revise its [urban growth area] designations when OFM population projections change. RCW 36.70A.130(3)(b)."); see also 36 WASH. PRAC., WASHINGTON LAND USE § 5:12 (2018) ("UGAs... [shall] provide densities[] 'sufficient to permit the urban growth that is projected [by the State Office of Financial Management] to occur in the county or city for the succeeding twenty-year period.' (footnote omitted)).
152. See Sullivan, supra note 119, at 392 93.
153. OR. REV. STAT. § 197.629 (2017).
154. See OR. ADMIN. R. 660-038-0020(15), 660-038-0210(2) (2018). 155. Telephone Interview with Edward J. Sullivan, Adjunct Professor, Lewis & Clark Law School (Oct. 1, 2018).
156. In 2011, the Florida legislature repealed the formerly mandatory duty of local governments to update and submit general plans for state review on a seven-year cycle. FLA. STAT. § 163.3191 (2010) (repealed 2011); Stroud, supra note 119, at 412. Now it suffices for local governments to write a septennial letter reporting their December 2019] 105
Agenda Item #5.1.

HASTINGS LA WJOURNAL [

2. Critiques
Critiques of the West Coast Model are, to some extent, state-specific, which should hardly be surprising given the differences described above. The critiques are also time-specific, especially as to California, whose state housing framework has undergone big changes since the early 2000s and especially over the last few years. But measured by results, the West Coast Model has been a disappointment everywhere.

Oregon and Washington have achieved somewhat denser patterns of housing development than other similar states, which is consistent with their stated goal of confining growth within urban boundaries while producing sufficient housing. 157 Yet "the increase in [Portland and Seattle's] ... rate of housing production pales in comparison to what similarly-sized cities like Phoenix and Atlanta have achieved through outward expansion."' 158 And despite the Oregon LCDC's unique authority to establish minimum densities and direct the implementation of comprehensive plans, ninety percent of the residential land in Oregon's largest city remains zoned for single-family homes. 1 59 Since California adopted its RHNA framework in 1980, the state has become the poster child for housing policy dysfunction. A prominent 2005 study found that local governments in California with state-approved housing elements issued no more building permits than noncompliant jurisdictions, controlling for observable jurisdiction-level characteristics.160 A more recent study finds some evidence that localities with approved housing elements developed more BMR housing-but less market-rate housing-than similar localities without certified housing elements. 161
self-assessed need for plan amendments. FLA. STAT. § 163.3191(1) (2019). According to leading land-use attorney, Nancy Stroud, the housing element of a newly formed Florida municipality will get a careful look and be rejected by the state if it does not accommodate forecasted population growth, but municipalities are effectively on their own once they have an initial, state-approved plan in place. Telephone Interview with Nancy E. Stroud, Of Counsel, Lewis, Stroud & Deutsch, P.L. (Oct. 2, 2018). 157. See Issi Romem, Can US. Cities Compensate for Curbing Sprawl by Growing Denser?, BUILDZOOM (Sept. 14, 2016), https://www.buildzoom.com/blog/can-cities-compensate-for-cuibing-spmwl-by-growingdenser. 158. Id.
159. Diller & Sullivan, supra note 119, at 225 n.224 (reporting figures as ofDec. 23, 2017). 160. Paul G. Lewis, Can StateReview ofLocalPlanning Increase Housing Production?, 16 HoUSINGPOLY DEBATE 173 (2005).
161. See Ramsey-Musolf, supra note 130 (comparing jurisdictions in the Los Angeles and Sacramento regions with and without approved housing elements). A problem with studies in this vein is that rich jurisdictions are likely to have more planning capacity, greater NIMBYism, and more opportunities to extract rents through inclusionary-zoning requirements than poor jurisdictions; and planning capacity is probably correlated with having an approved housing element. This would bias the results of studies that treat jurisdictions without an approved element as counterfactuals forjurisdictions with an approved element, unless one has good measures of planning capacity and NIMBYism. For a case study of two Silicon Valley suburbs which suggests that California's framework is becoming more effective, see Jessie Agatstein, The Suburbs'Fair Share: How California's Housing Element Law (and Facebook) Can Set a Housing Production Floor, 44 REAL EST. L.J. 219 (2015).
106 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
So what went wrong? One must be a bit circumspect in answering this question, because there is no state whose land-use interventions have been shown to expand the supply of housing substantially. I would venture, however, that the failures of the West Coast Model are at least partly due to (1) the use of projected household growth rather than market conditions to set housing-supply targets, and (2) a misplaced presumption of local good faith with respect to the design and implementation of land-use plans.
a. Aiming at the Wrong Target
The West Coast Model improves on its Northeastern counterpart by recognizing that local governments may over-restrict market-rate housing development. 162 It also furnishes a procedural framework for negotiating regional (California) 163 or countywide (Washington and Oregon) 164 housing goals in advance of discrete rezoning and project-permitting decisions. 165 But the West Coast Model launches these negotiations with a specific target in mind, and the target is perverse: accommodating projected household growth. 1 66 A region that has allowed little new housing will have a depressed rate of new household formation, but this hardly means that the region has little need for new housing. On the contrary, if many people want to live in the region, the barriers to new housing will manifest in sky-high prices for existing housing; this, in turn, slows the rate of new household formation. 1 67 Young adults who
cannot afford a place of their own will live with their parents or stacked up with roommates. The corresponding slowdown in the rate of household formation yields a smaller projection of "regional housing need," while the economic reality is exactly the opposite. 1
68 162. See supra text accompanying notes 121 125.
163. See CAL. GOV'T CODE § 65584 et seq. (West 2019); CAL. MANUAL 18 21, see also supra text accompanying note 121.
164. See, e.g., OR. REV. STAT. § 197.296(2) (2017) (regarding zoning in Oregon); WASH. REV.

CODE § 36.70A.106 (2019) (regarding the submission process in Washington); see also supra text accompanying notes 121 123. In practice, county-level coordination never worked very well in Oregon, and the state's population forecaster now tells each city in a county how much growth it shall accommodate. See Sullivan, supra note 121, at 59-65.
165. As Rick Hills and David Schleicher have emphasized, such procedural frameworks can reduce the impact of NIMBYism on land use decisions, if there's a viable mechanism to enforce the agreements. See infra Subpart IV.B.2.
166. See CAL. GOV'T CODE § 65584 et seq. (West 2019).
167. See Sarah Mawhorter, Housing Policies in California Cities: Seeking Local Solutions to a Statewide Shortfall (Dec. 2018) (unpublished working paper), http://califomialanduse org/working-papers html. 168. California law also presumes that "housing need" for new households at a particular income level can only be accommodated with new housing units, which are sold or rented at a price those households can afford hence the division of the RHNA into units for very-low, low, moderate, and above-moderate income households.

This overlooks the effect of new construction or its absence on the price of existing units. If the market produces loads of new luxury housing, some people will trade up, and existing less-fancy units will become more affordable. Conversely, if there are serious barriers to meeting demand for new luxury units, developers will scoop up existing less-fancy homes, renovate them, and put them on the market as luxurious, like-new units.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
Because population and household growth in high-demand regions is endogenous to housing supply, it makes little sense to fix supply targets on the basis of population projections. Oregon all but acknowledges this point.

Regulations issued in 2014 tell the state's population forecaster to account for local governments' "[p]lanned new housing," "[e]xpected changes to zoning designations or density," and "[a]dopted policies regarding population growth."' 69 Yet other Oregon laws tell local governments to gauge their housing needs and draw urban boundaries on the basis of the population forecast. 7 0 Thus does the planning dog chase its own tail.

The absurdity of basing housing-need determinations on population forecasts is well illustrated by the fact that, for the current planning cycle in California, the city of Beverly Hills-with a median home price of roughly $3.5 million'71-received an affordable housing quota of precisely three units, and a market-rate quota of zero units. 172 When journalists noticed this and began asking snarky questions, the city's leadership responded that the tiny allocations were reasonable because Beverly Hills's population was not growing. 173 According to the traditional logic of the West Coast Model, the city's leadership had it exactly right. And this illustrates just how wrong it is for states to base local housing obligations on population-growth projections. Under any sane regime, a region comprised of Beverly Hillses--of cities that have utterly stanched population growth despite astronomical demand-would be presumptively categorized as having enormous unmet housing need. 174 Or consider that San Francisco County, which as of this writing "has the highest total RHNA target assigned relative to population" of all counties in the state, 175 is expected to accommodate a mere 7.5% increase in its housing stock over the 2014-2022 planning cycle. 1
76 More than 60% of San Francisco's target
consists of subsidized, below-market-rate units that will not be built for decades, 169. PORTLAND STATE UNV., FORECAST AND DELIVERABLES, 577-050-0050(3) (2019), https://www.pdx.edu/ogc/sites/www.pdx.edu.ogc/files/Amended /2 577-050-0050 /20Forecast /2OProcess / 20and%2oDeliverables.pdf. For a history of Oregon population forecasting, see Sullivan, supra note 121. 170. See OR. REV. STAT. § 197.296(2) (2017); see also supra text accompanying note 12 1. 171. Beverly Hills Home Prices & Values, ZILLOW, https://www.zillow.com/108ncinit-hills-ca/homevalues/ (last visited Nov. 6, 2019). 172. Thomas Fuller & Conor Dougherty, California Today: The Beverly Hills Affordable Housing Loophole, N.Y. TIMES (Feb. 5, 2018), https://www.nytimes.com/2018/02/05/us/califomia-today-beverly-hillsaffordable-housing.html. 173. Minneapolis Just Eliminated Single-Family Zoning. Should California Cities Follow Suit?, GIMME SHELTER: THE CALIFORNIA HOUSING CRISIS PODCAST (Dec. 27, 2018), https://calmatters.org/housing/2018/12/minneapolis-bans-single-family-zoning-should-califomia/. 174. I say "presumptively" because a state might reasonably decide that some regions with high housing prices and low growth should be allowed to stay that way say, because of historic preservation or environmental concerns.
175. NEXT1O, MISSING THE MARK: EXAMINING THE SHORTCOMINGS OF CALIFORNIA'S HOUSING GOALS 29 (Feb. 28, 2019), https://www.nextl0.org/housing-goals.
176. The city's RHNA share for the current planning cycle totals 28,870 units, and its housing stock circa 2013 totaled 376,081 units. See S.F. GEN. PLAN, 2014 HOUSING ELEMENT, at PART 1 (2015) [hereinafter 2014 HOUSING ELEMENT].
108 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
if ever. They will not be built because, as the city's housing element frankly acknowledges, producing that much below-market housing would require a stunning $7.3 billion in subsidies. 1
77 This is not normal or healthy. San Francisco, one of the nation's most expensive housing markets, should be producing new market-rate housing at many times the rate contemplated by its RHNA allocation. Whereas San Francisco's eight-year target for market-rate units corresponds to a housingstock expansion of less than 3%, the economically productive metropolises in our nation's more affordable regions increased their housing stock by 3 0 o- 6 0 %
over just the period from 2000 to 2013.17 The Charlestons, Atlantas, and Phoenixes of the world didn't manage this feat with billion upon billion in public subsidies. They did it simply by allowing developers to build. 179 San Francisco should too-but it won't face much pressure to do so unless it's assigned a much bigger RHNA for unsubsidized housing.

This is not to say that there is one uniquely best or most defensible way to set housing-supply targets. But if West Coast Model states were serious about the problems canvassed in Part I, they would be well advised to tie local housing quotas to good indicators of unmet demand (such as housing prices that substantially exceed the usual costs of production), 80 as well as actual or potential access to job centers via convenient, non-greenhouse-gas-intensive modes of commuting.

Or, more simply, the state might require every local government to zone for a substantial increase in housing supply, and then let the market determine which regions shall grow. In recognition of the fact that the affordable metro areas of the South and Southwest managed to increase their housing supply by 300o-60% in barely more than a decade, 181 policymakers in a high-cost state might decide that local governments should plan for a potential 50% increase in housing supply, and maintain this "potential growth buffer" through decennial revisions of the general plan and zoning maps. A state agency would review the periodic revisions, rejecting those that fail to demonstrate potential for 50% growth (relative to the then-current housing stock), or that assign the buffer to difficult-to-develop sites.

The details of such a scheme are far beyond the scope of this Article. For now, suffice it to observe that West Coast Model states are not going to solve the housing-supply problem so long as cities or regions can effectively pick their 177. Id. at 1.101.
178. See Glaeser & Gyourko, supra note 28, at 16, 19 fig.3. 179. See Joseph Gyourko et al.,A New Measure oftheLocalRegulatoryEnvironmentforHousingMarkets:

The Wharton Residential Land Use Regulatory Index, 45 URB. STUD. 693 (2008) (documenting geographic variation in the stringency of land-use regulation).
180. Cf Issi Romem, Paying For Dirt: Where Have Home Values Detached From Construction Costs?, BUILDZOOM (Oct. 17, 2017), https://www buildzoom com/blog/paying-for-dirt-where-have-home-valuesdetached-from-construction-costs (providing metro-area estimates of construction costs and home values). 181. See Glaeser & Gyourko, supra note 28, at 19 fig. 3.

December 2019] 109
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
own housing quotas by enacting onerous controls that curtail population growth notwithstanding high demand.
b. The Misplaced Presumption of Good Faith
A key takeaway from the political science and economics research surveyed in Part I is that homeowners wield outsized influence over local governments, and that the self-interest of incumbent homeowners is at war with the public interest in expanding the housing stock of high-cost metro areas. Yet the West Coast Model states have tacitly assumed that local governments will try diligently and in good faith to meet the state's housing targets. This presumption of good faith is manifested in the standards for judicial review of local housing plans, and in the lack of a robust state-law framework to prevent or deter local governments from evading commitments in their state-approved plans.

Begin with judicial review. California courts have long treated housing elements as "legislative enactments" entitled to the usual presumption of validity that other legislation enjoys-even if the state agency has rejected the housing element in question. 182 So long as the housing element "contain[s] the elements mandated by the statute," the courts will uphold it.'83 Whether it actually enables construction of the required number of units has been deemed irrelevant as matter of law to the housing element's validity. 1
84 In Washington and Florida, the reviewing state agency cannot make binding determinations about the validity of a housing plan, but may challenge the plan before an administrative tribunal. 185 In both states, "comprehensive plans and development regulations ... are presumed valid upon adoption," 186 182. See, e.g., Fonsecav. City of Gilroy, 56 Cal. Rptr. 3d 374, 387 (Ct App. 2007) (restating and applying doctrine that housing element is a legislative enactment subject to strong presumption of validity, notwithstanding agency disapproval); Buena Vista Gardens Apartments Ass'n v. City of San Diego Planning Dep't, 220 Cal. Rptr. 732, 737, 739 (Ct App. 1985) (stating that "the appropriate standard of appellate review is whether the local... [government] has acted 'arbitrarily, capriciously, or without evidentiary basis," and upholding housing element notwithstanding state agency's rejection of it for want of, inter alia, "a comprehensive five-year schedule of actions" (internal quotation marks omitted) (citations omitted)). For a review of other cases to similar effect, see Field, supra note 135, at 54 61. 183. Fonseca, 56 Cal. Rptr. 3d at 387.
184. Id. at 382 ("[J]udicial review of a housing element for substantial compliance with the statutory requirements does not involve an examination of the merits of the element," that is, "whether the programs adopted are adequate to meet their objectives." (emphasis added) (citations omitted) (quoting Black Prop.

Owners Ass'nv. City of Berkeley, 28 Cal. Rptr. 2d 305 (Ct App. 1994)); Buena Vista Gardens, 220 Cal. Rptr. at 737 (treating agency's view of workability of plan as a "merits" question not for courts to consider injudging plan's validity).
185. In Washington, this adjudicator is the specialized Growth Management Hearing Board. See 24 WASH.

PRAC., ENVIRONMENTAL LAW & PRACTICE § 18.3 (2d ed. 2019). In Florida, it's the general-purpose Division of Administrative Hearings. See FLA. STAT. § 163.3184 (2019). 186. WASH. REv. CODE § 36.70A.320(1) (2019). There is an exception for certain coastal development regulations. See id.
[Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
and the burden of proof is on the party challenging them.'87 Washington's administrative tribunal "shall find compliance" unless it determines that the plan or development regulation at issue "is clearly erroneous."' 188 Only Oregon has firmly rejected judicial deference to local governments with respect to the plan. Approval by the LCDC is necessary to make a comprehensive plan legally effective, 189 and Oregon courts give LCDC actions the usual deference afforded to administrative rules and orders. 1 90 Beyond the legal standards for housing plan validity, the tacit presumption of good faith is also manifested in the lack of backstopping measures to counteract local evasion of duly adopted plans. Zoning and other local ordinances must be consistent with the plan, but consistency challenges have to be brought within a brief window of time following enactment of the ordinance at issue, 191 and courts strongly defer to local governments when evaluating consistency. 1
92 California and Oregon purport to limit local evasion of the plan at the project-permitting stage, by requiring local agencies to use only "objective" standards, 193 and to act on project applications within a fixed, reasonably short period of time. 19' But these strictures are less binding than they appear, and their weakness represents another manifestation of the tacit presumption of good faith. For example, time limits under California's Permit Streamlining Act kick in only after the local government has completed reviews under the California Environmental Quality Act and resolved any internal appeals. 1 95 Environmental appeals of municipal decisions are heard by the city council. 1 96 187. WASH. REV. CODE § 36.70A.320(2) (2019); see also FLA. STAT. § 163.3184(5)(2)(a) (2019) (stating that plans rejected by the state agency still enjoy a presumption of validity, and that it is the agency's burden to prove "by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance" with state law).
188. WASH. REV. CODE § 36.70A.320(3) (2019).
189. See OR. REV. STAT. §§ 197.319 335 (2017); OR. ADMIN. R. 660-045 (2018). 190. See, e.g., 1000 Friends of Or. V. Land Conservation & Dev. Comm'n, 724 P.2d 268, 284 (Or. 1986) (en banc) (extending deference to LCDC interpretations of law); City of Happy Valley v. LCDC, 677 P.2d 43, 46 (Or. Ct App. 1984) (applying abuse-of-discretion review to LCDC decision rejecting plan). 191. See CAL. GOV'T CODE § 65860(b) (West 2019) (90 days). 192. See Marracci v. City of Scappoose, 552 P.2d 552, 553 (Or. Ct App. 1976) (rejecting developer's argument that project that complied with the plan could not be denied on basis of more restrictive zoning ordinance, on ground that it was local government's prerogative to decide when and how to evolve "more restrictive zoning ordinances .. toward conformity with more permissive provisions of the plan"); see also CECILY TALBERT BARCLAY & MATTHEW S. GRAY, CALIFORNIA LAND USE & PLANNING LAW 25 26, 46 47 (36th ed. 2018) (discussing "arbitrary and capricious" and "no reasonable person" standards in California). The California courts have been more willing to enforce those policies of the general plan that the courts deem to be "fundamental, mandatory and clear." See, e.g., Ideal Boat & Camper Storage v. Cnty of Alameda, 145 Cal. Rptr. 3d 417, 425 (Ct App. 2012).
193. See Honchariw v. Cty. of Stanislaus, 132 Cal. Rptr. 3d 874, 875 76, 880 (2011) (discussing objective standards requirement and tracing it to a bill enacted in 1999); see also supra note 147 and accompanying text. 194. See CAL. Gov'T CODE § 65950 (West 2019); see also supra text accompanying note 146. 195. See CAL. GOVT. CODE § 65950(a); Eller Media Co. v. City of L.A., 105 Cal. Rptr. 2d 262, 264 (Ct App. 2001).
196. CAL. PUB. RES. CODE § 21151 (West 2019).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
So if a city councilmember wants to kill a housing project in her district, she can always insist on further, better, or different environmental analyses. Once the clock finally starts to run on the developer's permit application, local officials may "encourage" the developer to withdraw and resubmit it, 19 7 perhaps suggesting that if only this or that change were made, the application would more likely be approved. Or the decisionmaker may approve the project with conditions that make it tough to build or market. Weird or unexpected conditions might be challenged on the theory that the underlying development standard violates the state's objectivity requirement, but this is a crapshoot. Objectivity is a matter of degree, 198 and in any event, California's objectivity requirement only governs conditions that reduce a project's density or render it "infeasible."' 199 Finally, and perhaps most significantly, the tacit presumption of good faith is reflected in the lack of any material consequences for local governments that fail to meet their housing targets. Prior to the 2017 California housing package (discussed in the next Part), no West Coast Model state had enacted statutory ex-post punishments tied to actual housing construction over the planning cycle.

This is in sharp contrast to the Northeastern Model states, which expose jurisdictions that fail to meet their BMR-housing targets to the feared builder's remedy.200 Though Massachusetts, Rhode Island, and New Jersey provide for plan-based exemptions from the builder's remedy, Massachusetts and Rhode Island extend this exemption only to local governments making adequate yearly progress toward their affordable-housing goals. 201
In principle, housing agencies in the West Coast Model states could incentivize local follow-through by announcing that the agency will review a locality's next plan very harshly if the local government fails to meet its housing targets under the current plan. Cities hoping to avoid fiscal and regulatory sanctions for not having an approved plan would then have good reason to permit the housing for which they planned. But to induce compliance in this way, the state agency must have authority to reject a housing plan as unlikely to work, given the local government's track record. California law historically would not allow this, and the presumption of validity in Washington and Florida works against it too.202
Putting all these pieces together-the inane, population-forecast metric of housing need; the deference to local governments on the substance of their plans; 197. See CAL. Gov'T CODE § 65943 (West 2019) (stipulating that clock restarts with each resubmission of an application).
198. Cf Rogue Valley Ass'n of Realtors v. City of Ashland, No. 97-260, slip op. at 17 (Or. LUBA Sept. 24, 1998) ("[Flew tasks are less clear or more subjective than attempting to determine whether a particular land use approval criterion is clear and objective.").
199. See CAL. Gov'T CODE § 65589.5(d) (West 2019).
200. See supra Subpart IIA.
201. See supra note 101 and accompanying text. In New Jersey, the prospect of a court-ordered builder's remedy hangs over all local land use decisions, so local governments disregard outcomes at their peril. See supra text accompanying note 99.
202. See CAL. GOV'T CODE § 65589.5(d) (West 2019); FLA. STAT. § 163.3184(5)(2)(a) (2019); WASH. REV.

CODE § 36.70A.320(2) (2019).
[Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
the barriers to consistency challenges; the lack of an expeditious procedure for permitting projects that conform to the plan but violate contrary local ordinances; and the failure to punish or reward local governments on the basis of housing outcomes-one cannot help but wonder whether the state legislators who forged the West Coast Model were themselves acting in good faith. Did they really mean to overcome local bariers to the supply of an adequate amount of new housing, or was the mandate to plan for "needed housing" just a means of prettifying some other agenda?203
III. THE NEW YIMBY MEASURES
Legal scholars and economists who write about housing-supply barriers have tended to regard state-level interventions skeptically, if at all.204 Their skepticism is rooted in the risk that state control of local land-use regulation will enable local homevoter coalitions to band together into regional cartels. 20 5 In the absence of state control, the argument goes, developers should be able to buy off some local governments in a region and thereby increase the regional housing supply. 20 6 But once the state gets involved, antidevelopment interests can wield state law to make every local government establish rigid growth boundaries, onerous inclusionary zoning ordinances, or other restrictions that stanch the regional supply of new housing.

The state-cartelization thesis may be overdrawn-local governments have proven themselves quite capable of coordinating exclusionary policies without directives from the state20 7 -but the traditional Northeastern and West Coast Models do not inspire much confidence in the states' ability to intervene constructively in local land use. And yet, as housing prices in the expensive metro areas rocketed upward following the Great Recession of 2007-2009, the states, led by California, responded with forceful measures to increase the supply of market-rate as well as BMR housing. This Part explains California's 203. In Oregon and Washington, the "other agenda" was presumably the establishment of urban growth boundaries. In California, the other agenda is less apparent, but it may have been to support developers of BMR housing (much like the Northeastern Model); cf Ramsey-Musolf, supra note 130 (finding, during study period, that jurisdictions with approved housing elements produce more BMR housing, but less market-rate housing, than jurisdictions without approved housing elements).
204. See, e.g., FISCHEL, ZONING RULES, supra note 4, at 54 57, 365 67 (discussing weakness of state housing requirements, and concluding with a dozen-item menu of suggestions for combatting housing supply restrictions, on which the "state planning mandate" is not mentioned). One exception is an article by John Infranca, written independently of this Article, which also discusses state ADU and density mandates. See John Infranca, The New State Zoning: Land Use Preemption Amid a Housing Crisis, 60 B.C. L. REV 823 (2019).

Infranca focuses on upzoning by state statute, whereas I think the more promising reforms concern housing quotas and the nature of the plan. See infra Parts III & IV. 205. See, e.g., FISCHEL, ZONING RULES, supra note 4, at 307 (suggesting that homeowners in Portland metro area favor regional controls as a means of restricting housing supply); Robert C. Ellickson, Suburban Growth Controls: An Economic and LegalAnalysis, 86 YALE LJ. 385, 434 35 (1977) (discussing this risk). 206. See Ellickson, supra note 205, at 404 10 (arguing that developer influence means that exclusionary practices by some homogenous suburbs are unlikely to distort allocation of housing and people across metro areas).
207. See supra Part 1.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
reworking of its housing framework, as well as recent initiatives in California and other states to curtail the locally popular practice of zoning developable land exclusively for single-family homes on large lots.

Pushing the state-level interventions is a nascent Yes In My Backyard (YIMBY) movement.2°8 YIMBY groups are springing up around the country to lobby for more housing at the state and local levels. 209 The YIMBYs' statelegislative and fundraising successes warrant a rethinking of the statecartelization thesis, a point to which I shall return below.

A. CALIFORNIA STRENGTHENS THE WEST COAST MODEL
Starting around 2005 and accelerating a decade later, California passed a flurry of bills that try to answer critiques of the West Coast Model. In 2017 alone, the legislature enacted a fifteen-bill housing package. The state is feeling its way toward a better way of setting housing-supply targets, and the tacit presumption of good faith on the part of local governments is under attack.

1. Devising a Better Target
California Senate Bill 828 (SB 828), enacted in 2018, begins to establish a new ground norm for RHNAs, the regional housing targets. 210 The bill was a political compromise and leaves in place the old idea of tying housing quotas to population projections, while adding a new overlay of administrative discretion to plump up regional quotas on the basis of a nationally normed affordability goal. 21' Determinations of housing need are to account for the percentage of "cost burdened" households in the region (households spending more than 30% of their income on housing), relative to "the rate of housing cost burden for a healthy housing market.- 212 The "healthy housing market" standard is in turn defined as a cost-burden rate "no more than the average [such rate] in comparable regions throughout the nation."213 Similarly, the "overcrowding 208. See Kenneth Stahl, "Yes in My Backyard". Can a New Pro-Housing Movement Overcome the Power ofNIMBYs?, 41 ZONING & PLAN. L. REP., Mar. 2018.
209. See Stahl, supra note 208, see also YIMBY, WIKIPEDIA, https:Hen.wikipedia.org/wiki/YIMBY (last visited Nov. 6, 2019).
210. S.B. 828, 2017 2018 Leg. (Cal. 2018). SB 828 builds on a measure passed a year earlier, A.B. 1068, which curtailed Council of Governments (COG) authority to deviate from the state's official population forecast, and which added "[t]he percentage of renters' households that are overcrowded" as a factor to be weighed when converting the population forecast into RHNA quotas. See Assemb. B. 1086, 2017-2018 Gen. Assemb. (Cal. 2017) (amending CAL. GOVT CODE §§ 65584, 65584.01, 65584.05 (West 2019)). 211. The bill, as passed initially by the state senate, provided that HCD "shall grant allowances" for the factors discussed in this paragraph, but the state assembly removed this language in favor of a more permissive authorization "to make adjustments." See
https:Hleginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtnilbill id 201720180SB828&cversion -20170SB82895AMD.
212. S.B. 828 § 2 (amending CAL. GOVT CODE § 65584.01(b)). 213. Id.
[Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
rate" among renter households should be "no more than the average overcrowding rate in comparable regions throughout the nation. ' 214 SB 828 is a very important development in the housing policy dialectic.

The bill explicitly confronts, and condemns, the way in which exclusionary jurisdictions have, until now, been rewarded for their exclusion with small housing quotas. 215 The idea of a nationally normed "healthy markets" standard represents a new and facially plausible alternative to setting housing quotas on the basis of population trends.216 But the bill's metric of housing-market health is problematic: the "percentage of cost burdened households" fails to account for the effect of prices on population flows. As housing becomes more expensive in supply-constrained markets, less affluent residents are evicted or bought out and leave for cheaper pastures, and only rich people choose to move in.217 This tends to equalize the share of cost-burdened households across supplyconstrained and unconstrained regions. 218 Indeed, in economic models with costless mobility, an interregional disparity in the percentage of household income spent on housing will persist only if certain regions offer locational amenities not found elsewhere. 219 So, ironically, the fact that a region has a persistently large share of cost-burdened households may indicate that it is doing a very good job protecting environmental and other characteristics which make it desirable, not that it suffers from welfare-reducing supply constraints.

These conceptual problems notwithstanding, California's housing agency may still manage to ramp up housing quotas using the authority granted by SB 828. Specifically, the housing agency could try to convert disequilibrium changes in the share of cost-burdened households into bigger RHNAs for the state's expensive, supply-constrained regions. Because moving between regions is costly, supply-constrained regions experiencing positive economic shocks are 214. Id.
215. S.B. 828 § 3 (amending CAL. GoVT CODE § 65584.04(f)) (stating that neither "[p]rior underproduction of housing .. from the previous regional housing needs allocation" nor "[s]table population numbers" shall be "a justification for a determination or a reduction in a jurisdiction's share of the regional housing need").
216. And the bill's influence may be spilling across state lines: Oregon is about to launch its first statedirected regional housing needs assessment, and has authorized the state housing agency to consider not only population forecasts, but also "economic trends" and "trends in density and .. urban residential development." H.B. 2003 § 1, Gen. Assemb, Reg. Sess. (Or. 2019). Oregon has also told local governments estimating housing need to "adopt findings related to changes in," inter alia, "housing costs" and "household incomes." Or. HB 2003 § 10(a).
217. See, e.g., ROMEM & KNEEBONE, supra note 25 (finding thatthe SanFrancisco Bay Area has the greatest socioeconomic disparity between its in-migmnts, who tend to be rich, and its out-migmnts, who tend to be poor, of all metro areas in the United States).
218. Tellingly, the share of cost-burdened households in the San Francisco region is smaller than that in the Riverside-San Bernardino region. See California's High Housing Costs: Causes and Consequences, LEGISLATIVE ANALYST'S OFFICE (Mar. 16, 2015), https:Hlao.ca.gov/Infographics/californias-high-housingcosts. This is the case even though the price of housing relative to replacement cost in the San Francisco region is almost twice as high as in the San Bernardino-Riverside region. See Romem, supra note 180. 219. See, e.g., Albouy and Ehrlich., supra note 41(presenting model in which high housing costs relative to wage persist in equilibrium only because of locational amenities).

December 2019] 115
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
also likely to experience at least temporary increases in the share of costburdened and overcrowded households.220 In the fall of 2019, HCD used its new authority to triple the RHNA for the Southern California Association of Governments.
22 1
To be sure, newly ambitious RHNAs under SB 828 might not achieve very much if California's courts continue to give unstinting deference to local governments' housing elements, and if even the best of plans come to naught because there are no guardrails on implementation. But California has started responding to these critiques as well.

2. Upending the Presumption of Local Good Faith
I suggested earlier that if a state took seriously the political economy of local land use, the state would presume bad faith rather than good faith with respect to the design and implementation of the housing element, and backstop approved housing elements with strong measures to combat local governments' evasion of their state-approved plans. 222 California is starting to take this idea to heart.
a. The Standard for a "Substantially Compliant" Housing Element
California has not expressly abrogated the courts' deferential, check-theboxes test for the validity of a housing element,223 but local governments can no longer count on judicial or administrative tolerance of dysfunctional housing plans. HCD now openly rejects the courts' gloss on substantial compliance, applying a more functional test (at least since 2012) and all but inviting legal challenge. 224 In 2017, the legislature authorized HCD to review housing-element implementation and, upon discovering a serious failure of implementation, to rescind the agency's finding that the housing element substantially complies with state law. 225 This new emphasis on implementation is hard to square with the courts' longstanding position that substantial compliance is just a matter of 220. Price controls rent control and BMR deed restrictions may mute this. 221. Liam Dillon, Southern California Must Plan for 1.3 Million New Homes in the Next Decade, Newsom Says, L.A. TIMES (Aug. 22, 2019) https://www.latimes.com/califomia/stoy/2019-08-22/southem-califomiahousing-growth. 222. See supra Subpart I.B.2.
223. Regarding the traditional test, see supra notes 182 184 and accompanying text. 224. See Barbara E. Kautz, Housing Elements: Beware of What You Promise (Sept. 19, 2013) (unpublished working paper) (criticizing a 2012 letter from HCD to the Association of Bay Area Governments, in which the agency wrote: "While a court may review a housing element to find whether it contains the elements mandated by the statute, the Department's review considers the adequacy of information, program commitments, and timeframes to meet various statutory goals and objectives") https://www.cacities.org/ UploadedFiles/LeagueIntemet/28/288f67 if-50 ld-4ce4-9099-557bd10ef7f0.pdf 225. Assemb. B. 72, 2017 2018 Gen. Assemb. (Cal. 2017) (adding CAL. GoVT CODE § 65585(i)(1)(a) (West 2019) (A.B. 72). The first enforcement action under A.B. 72 was filed against a city that amended a specific plan in a manner that conflicted with the housing element. See Complaint, Cal. Dep't of Hous. & Cmty.

Dev. v. City of Huntington Beach, No. 30-2019-01046493-CU-JR-CJC (Cal. Sup. Ct. Jan. 25, 2019). [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
whether the housing element "contains the elements mandated by the statute. ' 226 So too is a new requirement that local governments allocate their RHNA shares to imminently developable sites, 227 as is a fairly recent statutory provision encouraging affordable-housing developers to challenge housing elements' assignment of RHNA shares to sites.228 The California Supreme Court, which has yet to address what constitutes a substantially compliant housing element, may eventually conclude that the legislature has tacitly ratified HCD's gloss on substantial compliance. 229
b. Pressure to Remain in Compliance
In the early 1990s, only about a quarter of California jurisdictions had HCD-approved housing elements in place. 230 By the early 2000s, more than 50% were compliant. 231 Today the figure is about 90%.232 This evolution reflects escalating legislature and judicial pressure to adopt and maintain compliant housing elements. The legislature has tied local governments' eligibility for an ever-lengthening list of grant programs to housing element compliance, 233 and trial courts have enjoined noncompliant local governments from issuing building permits for commercial and other uses. 234 In 2005, the legislature stripped local 226. Fonseca v. City of Gilroy, 56 Cal. Rptr. 3d 374, 387 (Ct App. 2007); see also text accompanying note 183.
227. See injra text accompanying notes 244 247.
228. See infra note 245.
229. It is significant in this regard that A.B. 72 was enacted subsequent to HCD's public flaunting of the judicial test for substantial compliance. Also, in 2018, the legislature codified its intent to "ensure that future housing production meets, at a minimum, the regional need established for planning purposes." S.B. 828, 2017- 2018 Leg. (Cal. 2018) (adding CAL. GoVT CODE § 65584(a)(2) (West 2019)).

As for the origins of the "substantial compliance" test, it was added to the housing element law in 1984, and at that time the legislature expressed its intent to codify the standard first applied in Camp v. Bd. Of Supervisors, 176 Cal. Rptr. 620 (Ct App. 1981). See Hernandez v. City of Encinitas, 33 Cal. Rptr. 2d 875, 880 (Ct App. 1994) (quoting the legislative declaration). Camp is actually a better decision than many more recent "substantial compliance" cases, because the Camp court gave considerable weight to the views of the state housing agency and characterized "substantial compliance" as a matter of substance rather than form. See 176 Cal. Rptr. at 629 32. Thus, the statutory origins of the substantial compliance standard would not prevent the California Supreme Court from putting a more demanding gloss on it than the lower courts have to date.

However, because the substantial compliance test per Camp governs challenges to any element of the general plan, not just the housing element, see 176 Cal. Rptr. At 629, the California Supreme Court may be wary of making the test very demanding.
230. See PAUL G. LEWIS, CALIFORNIA'S HOUSING ELEMENT LAW: THE ISSUE OF LOCAL NONCOMPLIANCE 21 22 (2003) (reporting that 19% were deemed compliant in 1991, and 37% by 1993). 231. Id. at 4 5 fig. 1.1, fig. 1.2 (noting that in 2002, 51% of cities and 66% of counties were deemed by HCD to be compliant).
232. CAL. DEP'T. OF Hous. & CMTY. DEV., HOUSING ELEMENT COMPLIANCE REPORT (2019), http://www.hcd.ca.gov/conununity-development/housing-element/docs/status.pdf. 233. See DEP'T HOUS. & CMTY. DEV., INCENTIVES FOR HOUSING ELEMENT COMPLIANCE (2009), http://hcd.ca.gov/conununity-development/housing-element/docs/ oan grant hecompO 11708.pdf Since 2009, the legislature has provided additional funding to compliant jurisdictions through a real-estate recording fee. See SB. 2 Planning Grants, DEP'T HOus. & CMTY. DEV., http://www.hcd.ca.gov/grants-funding/activefunding/planning-gmnts. shtml (last Nov. 6, 2019). 234. For a now-somewhat-dated summary of housing element litigation, remedies, and consent decrees, see SANTA BARBARA CTY. COUNSEL, SUMMARY OF HOUSING ELEMENT LAW AND LITIGATION 19 25 app. A (2007), December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [Vol. 71:79
governments without compliant housing elements of authority to use local zoning or the general plan to deny 20%-BMR projects on any site where housing is a permitted use. 235 Additional penalties are in the offing: a 2019 statute subjects noncompliant local governments to escalating monthly fines of up to $600,000.236 It also authorizes courts to appoint a judicial agent with "expertise in planning" to "bring the jurisdiction's housing element into substantial compliance." 237 No city will relish the prospect of bleeding $600,000 a month while a court rewrites its housing element.
c. The New, Self-Executing Housing Element?
The traditional West Coast requirement that local ordinances conform to the plan did little to help developers get projects approved. In California, a consistency challenge had to be brought within ninety days of enactment of the ordinance, 238 and even a successful challenge might result only in an order telling the local government to make the ordinance consistent (rather than an order approving a housing project). But a little-noticed reform adopted in 2004 and extended in 2018 lays down a path for later, as-applied challenges. The 2004 legislation requires local governments to approve 20%-BMR projects whose location and density comport with the housing element, "even [if the project] is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation." 239 The 2018 statute put developers of 100% market-rate projects on similar footing, 240 and, in conjunction with an amendment the previous year, appears to have eliminated deference to local governments on the question of whether zoning is consistent with the housing element or other https://legistarweb-production.s3.amazonaws.com/uploads/attachment/pdf/23990/Attachment 35 - Memo on Housing Element Law and Litigation.pdf
235. S.B. 575, 2005 2006 Leg. (Cal. 2005) (amending CAL. GoVT CODE § 65589.5(d) (West 2019)). 236. Assemb. B. 101, 2019 2020 Gen. Assemb. § 4 (Cal. 2019) (adding subsections (k) (n) to CAL. GoVT CODE § 65585 (West 2019) (explaining that the local authority canbe imposed a fine of up to $100,000, which is subject to increase by a factor of six if the court finds the original fees insufficient); see also Liam Dillon and Taryn Luna, California Leaders Strike Deal to Give Cities and Counties Hundreds of Millions to Fight Homelessness, L.A. TIES (June 27, 2019), https://www.latimes.com/politics/la-pol-ca-homeless-housingmoney -state-budget-20190627 -story. html. 237. CAL. GoVT CODE § 65585(l)(3)(B).
238. See CAL. GoVT CODE § 65860(b) (West 2019); see also supra text accompanying note 198. 239. Assemb. B. 2348, 2003 2004 Gen. Asemb. § 4 (Cal. 2004) (amending CAL. GoVT CODE §§ 65589.5(d)(5)(A), 65915(b)(1) (West 2019)).
240. See Assemb. B. 3194, 2017 2018 Gen. Assemb. (Cal. 2018) (adding CAL. GoVT CODE § 65589.50)(4) (West 2019)) (requiring approval of projects that comply with the general plan of which the housing element is a pan notwithstanding "zoning standards and criteria to the contrary). In contrast to the 2004 amendments for twenty percent BMR projects, the 2018 amendments are silent on whether local governments must grant permits for housing-element-compliant projects if the housing element conflicts with the land-use element and thus violates the background state-law requirement of "horizontal consistency" among components of the general plan. However, an intermediate court of appeals has held that housing elements that conflict with other components of the plan are valid and enforceable so long as the housing element acknowledges the inconsistency and spells out an action plan to fix it, for example, by amending the conflicting component of the plan. See Friends of Aviara v. City of Carlsbad, 148 Cal. Rptr. 3d 805, 810 11 (Ct. App. 2012).

Agenda Item #5.1.

BEYOND THE DOUBLE VETO
components of the general plan. 241 The thrust of these reforms is to make the housing element self-executing. 242 Developers may apply for permits on the authority of the housing element, and the local officials who review the project must disregard more restrictive zoning ordinances. Local governments that deny or reduce the density of a project in violation of this principle must pay the prevailing party's attorney fees. 243
d. The Requirement of Imminently Developable Sites
A favorite ruse of anti-housing local governments has been to assign their RHNA shares to sites that are impractical to develop. 244 A limited builder's remedy, enacted in 2005, puts some pressure on local governments not to do this,245 and in 2017, California took another big step, ordering local governments 241. The 2018 amendments do not expressly prescribe an evidentiary standard for resolving questions about the consistency of zoning with the general plan. However, when the consistency language was added to the bill, the associated bill analysis emphasized that the legislature had in 2017 abrogated deference to local governments on questions about a project's consistency with applicable standards, and quoted language to the effect that a project must be deemed compliant with the plan if a "reasonable person" could deem it so. See BILL ANALYSIS, Assemb. B. 3194, SEN. COMMITTEE ON TRANSP. & HOUS. 4 (2018), https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtmlbill id=201720180AB3194; see also text accompanying notes 248-252 (describing and contextualizing the new evidentiary standard). This drafting history, together with the stated purpose of A.B. 3194 to thwart local efforts to evade the HAA by zoning for less bulk or density than the general plan allows, thereby shunting multifamily housing projects into discretionary variance or rezoning processes, see BILL ANALYSIS, Assemb. B. 3194, SEN. FLOOR 3-4 (2018), https:Hleginfo.legislature.ca.gov/faces/billAnalysisClient.xhtmlbill id=201720180AB3194 (suggesting strongly that local governments are now prohibited from denying or reducing the density of housing projects if a reasonable person could deem the project compliant with the plan, notwithstanding zoning standards that are more restrictive).
242. Indeed, it appears that even conuitments made in the housing element to allow greater bulk or density by some specified date in the future can now be enforced through the HAA. See BILL ANALYSIS, Assemb. B. 3194, SEN. GoVT & FIN., (2018), https://ieginfo.legislature.ca.gov/faces/ billAnalysisClient. xhtmlbill id=201720180AB3194 (distinguishing legitimate from illegitimate denials of projects whose density is consistent with the density contemplated for the site by the general plan, giving as example of the former a denial during "a [reasonable] period between an amendment to portions of a general plan, such as the housing element, and when the local government updates its zoning ordinances to match the general plan"); Assemb. B. 72, 2017 2018 Gen. Assemb. (Cal. 2017) (adding CAL. GOVT CODE § 65585(i) (West 2019) (using term "inconsistency" in reference to "any failure to implement any program actions included in the housing element") (emphasis added).
243. CAL. GoVT CODE § 65585.5(k)(2) (West 2019).
244. This bit of conventional wisdom is indirectly supported by the California Legislative Analyst's finding that most multi-family construction occurs on sites which are not designated for multifamily construction in the corresponding housing element. See LEGISLATIVE ANALYST'S OFFICE, DO COMMUNITIES ADEQUATELY PLAN FOR HOUSING? 8 9 (2017) [hereinafter LAO, DO COMMUNITIES ADEQUATELY PLAN], https://iao.ca.gov/reports/2017/3605/plan-for-housing-030817.pdf Evidently, cities "plan" for multifamily housing where its uneconomical to build, and then work out case-by-case exemptions for certain developers. 245. The relevant statutory provisions state that if the local government has not designated sufficient sites for its low- and moderate-income RHNA shares, it may not rely on local zoning or the general plan to deny a project that is proposed for a residential site in which at least twenty percent of the units would be affordable to lower-income households. See CAL. GoVT CODE § 65589.5(d)(5)(B) (West 2019); S.B. 575, 2005 2006 Leg. § 1 (Cal. 2005). The only allowable ground for denial in most cases is that the project would have a "specific, adverse impact upon the public health or safety." CAL. GoVT CODE § 65589.5(d)(2). In these proceedings, the local agency has the burden of proof "to show that its housing element does identify adequate December 2019] 119
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
to accommodate their RHNA allocations on imminently developable sites. 24 6 Using HCD-issued forms, local governments must furnish a parcel-by-parcel enumeration of the available or potentially available sites for housing development, noting for each parcel its "realistic and demonstrated" development potential at various levels of affordability, current uses of the parcel, barriers to development at the parcel's potential density over the next period in the planning cycle, and any steps the local government intends to take to remove those constraints. 2 47
e. An End to Deference on Project-Specific Denials and Density Reductions
As far back as 1982, with the first iteration of its Housing Accountability Act (HAA), California recognized that local governments may try to evade state housing mandates through project-specific shenanigans, such as unwarranted delay, bad-faith application of existing standards, or denial on the basis of post hoc requirements invented for the purpose of killing the project.248 The original HAA provided that local governments may deny or reduce the density of a housing project that complied with applicable development standards at the time the permit application was submitted only if the decisionmaker makes "written findings supported by substantial evidence" that the project would have a "specific, adverse [and non-mitigable] impact upon the public health or safety. "249 Subsequently, the legislature clarified that only "objective" standards could be used to deny or reduce the density of a project.250 The difficulty with this requirement is that development standards are never perfectly clear, and it's hard for judges who lack intimate familiarity with the development process to say whether a standard is clear enough to qualify as "objective." 25 ' The 2017 housing package includes a clever fix: housing proposals must be deemed compliant with applicable development standards "if there is substantial evidence that would allow a reasonable person to conclude" sites with appropriate zoning and development standards and with services and facilities to accommodate... [the jurisdiction's] share of the regional housing need for the very low, low-, and moderateincome categories." CAL. Gov'T CODE § 65589.5(d)(5). 246. See Fonseca v. City of Gilroy, 56 Cal. Rptr. 374, 390 91 (Ct. App. 2007) (discussing 2005 amendments, while applying previous standards which did not require parcel identification); Assemb. B. 1397, 2017 2018, Gen. Assemb. (Cal. 2017) (delineating criteria for what counts as an available site). 247. Assemb. B. 1397, 2017 2018 Gen. Assemb. (Cal. 2017) (amending CAL. Gov'T CODE CODE §§ 65583(a)(3), 65583.2 (West 2019)). Ifthe local government assigns more thanfifty percent of its lowerincome RHNA share to presently non-vacant parcels, it must make findings supported by substantial evidence that the existing use of each such parcel "is likely to be discontinued" during the planning period. CAL. Gov'T CODE § 65583.2(g)(2)(West 2019).
248. 1982 Cal. Stat. 5484, ch. 1438 (adding CAL. Gov'T CODE § 65589.5 (West 2019)). 249. Id.
250. S.B. 948, 1999 2000 Leg. (Cal. 1999) (amending CAL. GOV'T CODE § 65589.5(d)(2)). 251. Cf. Rogue Valley Ass'n of Realtors v. City of Ashland, No. 97-260, slip op. at 17 (Or. LUBA Sept. 24, 1998) ("[Flew tasks are less clear or more subjective than attempting to determine whether a particular land use approval criterion is clear and objective.")
120 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
that the project conforms to the standards. 25 2 So if a local government chooses to employ mushy standards, it will have enormous difficulty denying any project, as the very mushiness of the standards means there will almost always be enough evidence to allow (not require) a reasonable person to conclude that the standards were met.

The 2017 amendments also hack away at local governments' discretion to deny zoning-compliant projects on the basis of alleged health or safety impacts.

Previously, such projects could be denied or reduced in density if there was substantial evidence in the record to support the local government's health or safety finding. 253 Going forward, the local government must show by a preponderance of the evidence that the project would have a "significant, quantifiable, direct, and unavoidable [public health or safety] impact, based on objective, identified written public health or safety standards.., as they existed on the date the application was deemed complete." 254 The local government must make these findings in writing within sixty days of its decision, 255 and, if the decision is challenged in court, the local government must carry the burden of proof.256 Lest judges fail to get the message, the legislature in 2018 declared that adverse health and safety impacts from new housing "arise infrequently.- 257 Finally, recent amendments to the HAA extend standing to sue to "housing organizations" and potential residents, and require defendants to pay the attorney's fees of prevailing plaintiffs.258 Developers who have ongoing relationships with a local government may be wary of litigating, say, a modest reduction in the size of their project. The attorney's fee and liberal standing provisions enable other parties to step in and make local governments follow their own rules.
f Statutory Consequences for Failing to Meet Housing Targets With the passage of California Senate Bill 35 (SB 35) in 2017, California became the first West Coast Model state to make local governments liable for failing to meet state housing targets, not just for failing to plan.259 SB 35 directs HCD to determine mid-cycle and at the end of the cycle whether each local government is on pace to meet, or has met, its RHNA targets. 21 If a local government falls short, it must permit as-of-right development of qualifying 252. Assemb. B. 1515, 2017 2018 Leg. § I (Cal. 2017) (amending CAL. GoV'T CODE § 65589.5(f)(4)). 253. The Housing Accountability Act originally required "written findings supported by substantial evidence" that the project would have "a specific, adverse [and not feasibly mitigable] impact upon the public health or safety." 1982 Stats. 5484, ch. 1438.
254. S.B. 167, 2017 2018 Leg. (Cal. 2017) (amending CAL. GoVT CODE § 65589.50)(1)(A)). 255. CAL. GoVT CODE § 65589.50)(2)
.
256. CAL. GoVT CODE §§ 65589.5(i), 65589.6.
257. Assemb. B. 3194, § 1, 2017 2018 Gen. Assemb. (Cal. 2018) (adding subdivision (a)(3) to CAL. Gov.'T CODE § 65589.5).
258. See S.B. 167 (amending CAL. GoVT CODE § 65589.5(k)(1)(A)). 259. S.B. 35, 2017 2018 Leg. (Cal. 2017) (enacted).
260. CAL. GoVT CODE §§ 65913.4(a)(4) & (h)(7) (West 2019).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL V
projects that comply with objective zoning and development standards. 261 Projects submitted under SB 35 must be approved or rejected by the local government within a brief window of time or else they are deemed approved as a matter of law, and they are exempt from environmental review. 262 In keeping with the idea of the housing element as self-executing and preemptive, SB 35 provides that in the event of inconsistency between "zoning, general plan, subdivision, or design review standards ... a development shall be deemed consistent with the objective zoning and subdivision standards ... if the development is consistent with the standards set forth in the general plan." 263 (The housing element is a component of the general plan.) Though SB 35 projects must meet several other criteria that may blunt the statute's impact, 264 the statute advances an important principle: the local prerogative to use cumbersome, discretionary permitting procedures is conditional on the local government actually permitting the amount of new housing-including market-rate housing-that the state expects of it. 265 California's housing policy contraption would have made Rube Goldberg blush. But abstracting from the jury-rigged details, the big picture is this:

California, home to the nation's most expensive housing markets, is groping its way toward a nationally normed, "healthy housing market" standard for how much new housing local governments must accommodate. California has also taken steps to make state-approved housing plans self-executing, so that developers can get permits for plan-compliant projects notwithstanding contrary local ordinances. California has terminated judicial deference to local governments on the question of whether a development proposal complies with applicable zoning, development, environmental, and safety standards. And, using fee-shifting rules, liberal standing, and evidentiary reforms, California has armed interest groups and private citizens to challenge permit denials and density reductions, as well as the adequacy of the housing plan as a whole. These are unabashedly pro-housing reforms, applicable to market-rate as well as affordable projects.

Taken together, the California reforms are redefining the character and function of the comprehensive plan. Rather than serving as an "impermanent 261. See S.B. 35, § 3 (now codified as CAL. GoVT CODE § 65913.4 (West 2019)). 262. CAL. GoV'T CODE § 65913.4(b) & (c).
263. CAL. GoVT CODE § 65913.4(a)(5)(B).
264. The project must have at least ten percent BMR units (more if the jurisdiction has a compliant housing element and met its quota for market-rate housing in the previous cycle), must not use sites that were recently occupied by residential tenants or rent-controlled dwelling units, and, for larger projects, must pay union wages.

CAL. GoVT CODE § 65913.4(a)(4), (7) & (8).
265. The same principle is also advanced by another statutory provision added in 2017, which stipulates that local governments may not count a parcel toward their lower-income RHNA quota without rezoning it for byright development, if the parcel had been counted toward the quota but not developed in the previous planning cycle. See Assemb. B. 3197, 2017 2018 Gen. Assemb. (Cal. 2017) (amending CAL. GoVT CODE § 65583.21 (West 2019)).
122 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
constitution" for zoning and development ordinances, 266 or as a statement of a community's aspirations for its built environment,2W7 the plan, through its housing element, increasingly resembles a compact between the local government and the state about development permitting. Through the plan, local governments provide the state with an inventory of developable or redevelopable parcels within their territory, agree to accommodate a certain number of new housing units on those parcels, and commit to a schedule of actions to remove development constraints. 268 In return for making these promises, the local government maintains its eligibility for certain funding streams and avoids incursions on its regulatory autonomy. Developers, housing organizations, and potential residents can enforce the compact in court, both by suing the local government to make it follow through on rezoning and other actions promised in the housing element, and by demanding building permits on the authority of the housing element itself, even if the project conflicts with other local ordinances.

And yet this agreement is not quite a contract. The housing element, as a component of the local government's general plan, remains local law, and may itself be amended without the state agency's consent. The agency can respond to bad amendments by decertifying a housing element midcycle-exposing the local government to a loss of funding and possibly builder's remedy lawsuitsbut the agency cannot compel the local government to stick to the original compact. Nor may the agency rewrite the housing element of a local government that has failed to revise its housing element on the state's cycle.

One can think of the housing element, then, as a kind of provisionally preemptive state intervention in local land use. The state has considerable influence over the housing element's content, and while in place, the housing element supersedes contrary local regulations and establishes a basis for development permitting. But the housing element's preemptive character is softer than that of ordinary state law, both because the housing element must be locally adopted before it takes effect, and because it can be changed by the local government without the concurrence of the state-albeit at the price of risking pecuniary and regulatory sanctions.

It bears emphasis, finally, that the California transformation I have described in this section is still a work in progress. Housing elements in practice may fall pretty far short of the (evolving) statutory ideal. For example, during the most recent planning cycle, HCD approved the housing element of famously supply-constrained San Francisco, notwithstanding the plan's utterly vacuous program to address and remove constraints. 269 The California framework seems 266 For influential statements of this theory of the plan, see Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARv. L. REv. 1154 (1955); Mandelker, supra note 117. 267. On plans as dreamy visions for the future, see ELLICKSON ET AL., supra note 138, at 69-72. 268. See supra Subpart III.A.
269. See 2014 HoUSINGELEMENT, supra note 176, at C.23 C.24 app. C (setting forth a few vaguely stated, ongoing program actions to address constraints, while entirely ignoring one of the primary constraints identified the housing element's own analysis of constraints: the city's very unusual and cumbersome discretionary review December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
unlikely to achieve very much absent political leadership from the governor and HCD to make it work. The state's recently elected governor, Gavin Newsom, has made housing a priority, so his tenure will be an important test case for the framework.2 70
B. DENSITY MANDATES
In 1981, Oregon's LCDC promulgated the Metropolitan Housing Rule, which sets minimum zoning densities for cities in the Portland metro area.271 Ever since, land-use scholars have regarded the rule with a kind of wry bemusement, as if to say, "Oh, leave it to Oregon's urban-boundary enthusiasts to try something way too zany for any other state." 272 Yet in recent years, and on both coasts, states have begun to challenge local control over housing density, including the density of market-rate housing. This is an ideologically important development because, as Part II explained, the expensive Northeastern states traditionally regarded the "affordability problem" as being solely about barriers to the construction of subsidized, deed-restricted housing, 273 and because even West Coast states often privilege projects with a large share of BMR units.274 To date, most of the new density interventions have focused on so-called ADUs, small homes which may be developed in an under-utilized garage or basement, or added in the backyard of existing or proposed house. 275 Washington, California, Oregon, New Hampshire, and Vermont now require local governments to permit ADUs on parcels zoned for single family homes. 276 Connecticut, Florida and Rhode Island have proceeded a bit more indirectly, encouraging ADUs by allowing local governments to count them toward the procedure); Letter from Paul McDougall, Hous. Policy Manager, Cal. Dep't of Hous. & Cmty. Dev., to John Rahaim, Dir., Planning Dep't, City of S.F. (Sept. 10, 2014) (on file with author) (deeming the city's draft housing element compliant, without comment on constraints).
270. See Alexei Koseff, Newsom Blazing a Trail of His Own, S.F. CHRONICLE, Feb. 23, 2019, at A7 (comparing Newsom's housing positions with those of his predecessor). 271. The rule is codified at OR. ADMIN. R. 660-07-000 660-07-360 (2018). For discussion of its history, see City of Happy Valley v. Land Conservation & Dev. Comm 'n, 677 P.2d 43, 44 (Or. 1984). 272. See, e.g., FISCHEL, ZONING RULES, supra note 4, at 303 07, 366-67 (describing that Portland is "Oregon's boat to float"); Hills, supra note 95, at 1639 42 (praising Metropolitan Housing Rule, but describing the adoption of anything similar in New Jersey, the subject of his article, as "improbabl[e]"). 273. See supra Subpart IIA.
274. See supra Subpart III.B. (describing reforms in California). 275. ADUs are typically defined by statute as a small dwelling (for example, less than 800 or 1200 square feet) contained within, or located in close proximity to, another existing or zoning-authorized structure. See, e.g., CAL. GOV'T CODE § 65852.150 (West 2019).
276. See CAL. Gov'T CODE § 65852.2 (West 2019); N.H. REV. STAT. ANN. § 674:72 (2018); VT. STAT.

ANN. Tit. 24, § 4412(1) (2019); WASH. REV. CODE § 43.63A.215 (2019); S.B. 1051, 2017 2018 Leg. § 6 (Or. 2017) (enacted); WASH. STATE. DEP'T. OF CMTY., TRADE, AND ECON. DEV., MODEL ACCESSORY DWELLING UNIT ORDINANCE RECOMMENDATIONS (1994) http://mrsc.org/getmedia/3ccc6c5e-Occ9-43c 1-8936- bOO17c7cl6le/ADUordrecommendations.pdf aspx (describing model ADU ordinance which local governments of a certain size in Washington must conform to).
124 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
locality's fair-share obligation for affordable housing. 277 Several other states have enacted modest ADU incentive programs.
278
More aggressive density mandates are also on the table. In 2019, Oregon enacted a statewide upzoning bill that requires cities with at least 25,000 residents to allow fourplexes in all areas zoned for residential use, and cities with 10,000-25,000 residents to allow duplexes. 279 Cities that fail to bring their zoning ordinances into compliance within two to three years will have to permit duplexes and fourplexes pursuant to a default model ordinance issued by the LCDC. 280
The most ambitious of the statewide upzoning bills would rezone residential parcels near transit stations for four-to-five story buildings. 28 '
California state senator Scott Wiener has been pushing this idea since early 2018,282 drawing national attention to the connections between housing density, socioeconomic mobility, mass transit, and climate change.283 So far his efforts have been unavailing, 284 but the governor has signaled support, 28 5 legislators in other states are picking up on the idea, 286 and it seems safe to say that statewide 277. CONN. GEN. STAT. § 8-30g (2019); FLA. STAT. § 163.31771 (2019); 42 R.I. GEN. LAWS § 42-128-

8. i(b)(5) (2018).
278. See, e.g., MD. CODE ANN., Hous. & CMTY. DEV. § 4-926 (LexisNexis 2019) (providing for loan program for affordable housing including ADUs).
279. H.B. 2001, 80th Leg. Assemb., Reg. Sess. § 2 (Or. 2019) (enacted). 280. H.B. 2001 § 3.
281. See Scott Wiener, My Transit Density Bill (S.B. 827): Answering Common Questions and Debunking Misinformation, EXTRANEWSFEED (Jan. 16, 2018), https://extmnewsfeed.com/my-transit-density-bill-sb-827- answering-conunon-questions-and-debunking-misinformation-226eaa7e1653. 282. Id.; see also S.B. 50, 2019 2020 Leg. (Cal. 2019). 283. See, e.g., Conor Dougherty, California Lawmakers Kill Housing Bill after Fierce Debate, N.Y. TIMES (Apr. 17, 2018), https://www.nytimes.com/2018/04/17/business/economy/califomia-housing.html; Conor Dougherty & Brad Plumer, A Bold, Devisive Plan to Wean Californiansfrom Cars, NY TIMES (Mar. 16, 2018), https://www.nytimes.com/2018/03/16/business/energy-environment/climate-density.html; Megan McArdle, Opinion, Democrats' Housing Problem, WASH. POST. (Apr. 19, 2018), https://www.washingtonpost.com/blogs/Post-partisan/wp/2018/04/19/democrats-housing-problem/; Dante Ramos, Go On, California Blow up Your Lousy Zoning Laws, BOS. GLOBE (Jan. 14, 2018), https://www.bostonglobe.com/opiion/2018/01/14/califomia-blow-your-lousy-zoninglaws/AcTOvOJCdAiOJp3cBH9zmJ/stoiy.html; David Roberts, The Future of Housing Policy Is Being Decided in California, Vox (Apr. 4, 2018), https://www.vox.com/cities-and-ubanism/2018/2/23/17011154/sb827- califoria-housing-crisis.
284. Wiener's 2017 bill, SB 827, died in its first committee vote. See Dougherty, supra note 283. His 2018 bill, SB 50, sailed through its first two committee hearings before an obscure legislative procedure was used to table it. See Liam Dillon, The Revenge of the Suburbs: Why California 's Effort to Build More in Single-FamilyHome Neighborhoods Failed, L.A. TIMES (May 22, 2019), https://www.latimes.com/politics/la-pol-cacalifomia-sb50-failure-single-family-homes-subuibs-20190522-story.html. 285. See Randy Shaw, New Progress in Battling Housing Crisis, BEYONDCHRON (Oct. 15, 2019), http://beyondchron.org/will-ca-boost-housing-in-2020/.
286. In Washington, an upzoning-near-transit bill covering the Seattle region has been introduced. See S.B. 5424, 2019 Reg. Sess. (Wash. 2019); Doug Trumn, State Sen. Palumbo Plans to Introduce a Minimum Housing Density Bill, THE URBANIST (Oct. 5, 2018), https://www.theuibanist.org/2018/10/05/state-sen-palunibo-plansto-introduce-a-minimum-housing-density-bill!. In Massachusetts, one house of the legislature has voted to require every local government to zone at least one district "of reasonable size" for multi-family housing, at state-prescribed minimum densities. See S.B. 2311, 189th Gen. Court § 6 (Mass. 2016) (enacted); see also Katie December 2019] 125
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
upzoning bills will be the subject of ongoing debate and attention in the years ahead, in California and beyond.287
The statewide upzoning bills have generated a lot of excitement, but it's not clear that states will be able to get local governments to allow significantly more housing simply by preempting local restrictions on size and density. The evolution of California's ADU legislation offers an instructive lesson. 288 The state's ADU framework dates to 1982, when the legislature decreed that local governments may disallow ADUs within residential zones only if the locality makes findings of "specific adverse impacts on the public health, safety, and welfare. 289 Many local governments responded by "authorizing" ADUs while requiring ADU applicants to obtain onerous, discretionary permits. 290 Concerned that local governments were abusing their discretion, the state legislature, in 2002, directed local governments to permit ADUs ministerially; demanded approval of ADU applications that conform to state-prescribed requirements (irrespective of local ordinances); prescribed a template to which local ADU ordinances must conform; and required local governments to submit their ADU ordinances to the state housing agency for review.29' The 2002 bill did not, however, displace "height, setback, lot coverage, architectural review, site plan review, fees, charges, and other zoning requirements generally Lannan, Chandler: State Senate "Ready to Go" on Housing Bill, TELEGRAM.COM (Feb. 27, 2018), http://www.telegmm.com/news/20180227/chandler-state-senate-ready-to-go-on-housing-bill. 287. In addition to overt density mandates, several states have tried to use regulatory safe haibors to prod local governments into zoning for greater density. Oregon, Washington, California, and New Jersey provide examples. Since the mid-2000s, California has encouraged rezoning for higher densities through a safe-harbor provision in the housing element law. Sites zoned at or above the statutory minimum densities are deemed to have adequate density, as a matter of law, to accommodate a portion of the jurisdiction' s lower-income RHNA share. See Assemb. B. 2348, 2003 2004 Gen. Assemb. (Cal. 2004) (adding CAL. Gov'T CODE § 65583.2 (West 2019)). Similarly, in New Jersey, localities seeking immunity from the builder's remedy must zone at minimum densities for 20%-BMR projects. See In re Adoption of NJA.C. 5:96 & 5:97, 6 A.3d 445, 461-64 (N.J. Super.

Ct App. Div. 2010), afftdln re Adoption ofN.JA.C. 5:96 and 5:97, 74 A.3d 893, 897 (N.J. 2013) (invalidating regulation which, in the court's view, would have allowed local governments to comply with their Mt. Laurel obligations by zoning land at insufficient density and with excessive BMR requirements). In Oregon and Washington, state agencies have derived minimum zoning densities from the principle of confining growth within urban boundaries. Oregon's latest regulation, issued in 2009, spells out density safe harbors for local governments throughout the state that seek to adjust their growth perimeter. OR. ADMIN. R. § 660-024-0040(8) (2018). The Washington Supreme Court invalidated the Growth Management Hearing Board's attempt to create "bright line" minimum urban densities. See Viking Properties, Inc. v. Holm, 118 P.3d 322, 329 (Wash. 2005) (en banc). However, observers see Washington as having de facto density requirements for land within the growth boundaries. See Egon Terplan, Learning from Washington's Growth Management Act, THE URBANIST (July 31, 2017), https://www.spur.org/publications/urbanist-article/2017-07-31/learning-washington-s-growthmanagement-act ("Within uiban areas, most growth must be allocated with minimum densities of four units per acre.").
288. See Margaret F. Brinig & Nicole Stelle Garnett, A Room of One's Own: Accessory Dwelling Unit Reforms andLocal Parochialism, 45 URB. LAW. 519, 541-67 (2013). 289. Id. at 541 (quoting 1982 Cal. Stat. 5502).
290. See ASSEMBLY FLOOR ANALYSIS, Assemb. B. 1866, 2001 2002 Leg. (Cal. Aug. 28, 2002). 291. See Assemb. B. 1866; Brinig & Garnett, supra note 288, at 541 43. 126 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
applicable to residential construction in the zone in which the property is located. -292
Studying the response to this statute, Margaret Brinig and Nicole Garnett collected the zoning ordinances of every California municipality with more than 50,000 people, as well as public-meeting minutes and news stories. They found that most California cities-including Los Angeles, San Diego, and San Francisco-effectively thwarted the new mandate with a "thousand paper cuts." 293 Cities discouraged ADU construction via design review, costly building-material mandates, rental restrictions, owner-occupancy requirements, minimum lot sizes, conditional use permits, permit-filing fees, impact fees, and tight allowances for the permissible size of an ADU.294 Some of these requirements probably violated state law, but anti-ADU local governments had few compunctions about pushing the envelope of their reserved authority. 29 5 Frustrated by local intransigence, California enacted additional ADU bills in 2016, 2017, and 2019. The 2016 statute further constrains local requirements for parking, unit size, fire sprinklers, utility-connection fees, and lot-line setbacks.296 Additional tweaks were made in 2017,297 and in 2019 the legislature created an essentially unqualified right for every homeowner in the state to add a freestanding backyard ADU of up to 800 square feet, plus a 'junior ADU" of up to 500 square feet within the envelope of an existing structure. 298 The 2019 legislation also preempted local impact fees on ADUs of up to 750 square feet. 299 The new measures seem to have generated a flood of ADU applications,300 which suggests that local intransigence can be overcome if the legislature is willing to preempt a ton of local law and terminate local permitting discretion. 292. See Assemb. B. 1866 § 2 (amending CAL. GOV'T CODE § 65852.2(b)(1)(G) (West 2019)). 293. Brinig & Garnett, supra note 288, at 546 47; see also John Infmnca, Housing Changing Households:

Regulatory Challenges for Micro-Units and Accessory Dwelling Units, 25 STAN. L. & POL'Y REV. 53, 70 86 (2014) (detailing regulatory barriers to ADUs in five cities across the country). 294. Brinig & Garnett, supra note 288, at 543 66.
295. The death by a thousand cuts story also applies to so-called micro-units, an attempt to provide more affordable housing through small, dorm-like units. See David Neiman, How Seattle Killed Micro-Housing, SIGHTLINE INST. (Sept. 6, 2016), https://www, sightline. org/2016/09/06/how-seattle-killed-micro-housing/. 296. S.B. 1069, 2015 2016 Leg. (Cal. 2016) (enacted).
297. S.B. 229, 2017 2018 Leg. (Cal. 2017) (enacted) (clarifying, inter alia, that the restriction on utility fees applies to fees charged by special districts and water corporations). 298. See Dylan Casey, How to Make Your Home a Triplex, CARLA (Oct. 9, 2019), https://carlaeforg/2019/10/09/how-to-make-your-home-a-triplex/; Dylan Casey, Making Sense of This Year's ADU Legislation, CARLA (Sept. 13, 2019), https:/carlaeforg/2019/09/13/making-sense-of-this-years-adulegislation/. 299. S.B. 13, 2018 2019 Leg. (Cal. 2019) (enacted).
300. See David Garcia, ADU Update: Early Lessons and Impacts of California's State and Local Policy Changes, TERNER CTR. FOR Hous. INNOVATION (Dec. 21, 2017), https://ternercenter.berkeley.edu/blog/aduupdate-early-lessons-and-impacts-of-californias-state-and-local-policy ("across the board cities are seeing significant increases in ADU applications, with many cities doubling, tripling, or even quadrupling their totals from 2016"); Liam Dillon, How LawmakersAre Upending the California Lifestyle to Fight a Housing Shortage, L.A. TIMES (Oct. 10, 2019) https://www.latimes.com/california/stoy/2019-10-10/califomia-single-familyzoning-casitas-granny-flats-adus (noting that Los Angeles has received 13,300 requests to build ADUs since 2017 legislation, a twenty-fold increase over previous application rate).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
And yet, it's hard to imagine an upzoning-near-transit bill passing if the bill knocks out discretionary local control over development permitting.

Notably, Senator Wiener's bills would have left in place local authority over demolition control, design standards, permitting procedures, fees, and much more.30 ' If a similar bill is eventually enacted, local governments will have a field day inventing ways to evade it. 302
C. CONCLUSION
Spurred by the YIMBY movement, legislatures in the high-cost coastal states are showing new interest in local governments' land-use policies and are intervening in new and unambiguously pro-housing ways. There is clearly a receptive audience among state policymakers for ideas about how to overcome local NIMBYism and increase the supply of market-rate as well as BMR housing, particularly near mass transit. But there also seems to be some uncertainty about how best to proceed. Just about everything is on the table: new ways of setting housing-supply targets (national norming); new density requirements (ADUs and beyond); new tools for pressing local governments to follow their own rules (attorney's fees, evidentiary standards, time limits, as-ofright permitting, and permitting on the basis of the housing element); and more prescriptive requirements for the housing plan itself (imminently developable sites).

IV. A WAY FORWARD: "HOUSING ELEMENTS" AS TOP-DOWN AND BOTTOMUP DEVICES FOR OVERCOMING LOCAL BARRIERS TO HOUSING This Part takes up the "how best to proceed" question. Without purporting to offer a universal answer-there probably is none-I will suggest a variation on the emerging California model of the housing element as a preemptive intergovernmental compact for development permitting. The argument sounds in political economy, not normative theory. I take it as given that economically productive metro areas should allow a lot more housing to be built, especially in high-density forms near transit. The question is how to get them to allow it.

Today the California model, like its West Coast antecedents, represents a largely top-down strategy for controlling local barriers to housing supply.30 3 The state tells local governments how much new housing they must accommodate through their housing elements, and the state uses the threat of fiscal and 301. For an explanation from its author, see Scott Wiener, S.B. 827 Retains an Awful Lot of Local Control and Community Planning, MEDIUM (Apr. 8, 2018), https://medium.com/@Scott Wiener/sb-827-retains-anawful-lot-of-local-control-and-conununity-planning-b ld 1 lfc 1007. 302. That said, a statewide upzoning-near-transit bill would probably accomplish more in California than in most other states, because California's Housing Accountability Act makes it difficult for local governments to impose discretionary conditions on otherwise permissible projects whose effect is tantamount to reducing the project's density. See supra notes 248 256 and accompanying text. But local governments could still impose nondiscretionary fee, design, labor, and affordability requirements that make many transit-near-density projects uneconomic to build.
303. See supra Subpart IIIA.2.
128 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
regulatory sanctions to induce local governments to adopt compliant housing elements.30 4 It is a fair question, though, whether any high-cost state will be able to expand the supply of housing substantially without changing the local politics of housing-the political dynamics in cities and suburbs that led to decades of underproduction.

A central contribution of this Part is to show that the emerging California model can readily be adapted to put bottom-up as well as top-down pressure on local barriers to housing supply. Specifically, with a few modest extensions, the California framework could be used to increase the political leverage and policymaking discretion of relatively pro-housing factions in city politics, and to facilitate regional housing deals by enabling local governments to make credible commitments to one another.

Boiled down to essentials, the proposed variation on the California model combines a procedure for periodically (and unobtrusively) redefining the local regulatory baseline for housing development, in keeping with the state's goals; a mechanism to guard the new baseline against the retrogressive tactics of local governments; and interventions that redistribute policymaking authority toward relatively pro-housing factions at the local level.

In defending this approach, I develop a historical analogy to Jim Crow and the federal Voting Rights Act (VRA). The problem states now face in trying to control local barriers to housing supply is structurally quite similar to the problem the federal government faced in the 1960s when it undertook to dismantle the regime of publicly enforced racial hierarchy that prevailed throughout the South. In both cases, a central government seeks to control the behavior of local officials whose political incentives operate at cross purposes with the objectives of the central government. In both cases, the central government lacks the political will or administrative resources to entirely subsume the local government's functions.

The VRA tackled the local-political-incentives problem by defining a new regulatory baseline for voting, one which enfranchised black citizens en masse.3 °5 White office holders then had to answer to black preferences--or else find some new way to keep blacks from voting.30 6 To forestall local evasion of the new regulatory baseline, VRA provided for centralized, pre-implementation review of all future changes to voting standards and procedures. 30 7 My variation on the California model embodies the same basic ideas-new regulatory baselines, preclearance to guard against retrogression, and redistribution of political power-but adapts them to deal with a context in which there is no general consensus about what the new baseline should be, doubtful support for centralizing control over the traditionally local government function in question, 304. See supra Subpart III.A.2.
305. See infra Subpart V.B. 1.
306. See infra Subpart V.B. 1.
307. See infra Subpart V.B. 1.

December 2019] 129
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
and no easy enfranchisement-oriented solution for the political incentive problem.
30 8
Subpart IV.A lays out the elements of my proposal, and briefly explains what further reforms would be needed to fully realize it in the state that's come closest to date, California. Subpart JV.B explains the model's top-down and bottom-up mechanisms for inducing local governments to relax locally erected barriers to new housing.

A. ELEMENTS OF THE MODEL
Extending California's recent innovations, the model I shall defend has the following components:
(1) The state, through a housing agency under control of the governor, periodically determines the minimum amount of new housing that each region of the state shall accommodate over the planning cycle. The agency or a regional council of govermnents then divvies up the regional need among local governments. Both the need determination and the divvying should be grounded in economic conditions not population projections so that new housing is added where it would be more valuable, and so that escalating prices result in higher housing quotas. (Alternatively, the state might just require all economically significant regions to maintain a substantial potential-housing buffer, such as, capacity to accommodate a 30 50% increase in the housing stock over the course of a decade.) 309 (2) After receiving their housing targets, local governments must draft and submit to the state housing agency a parcel-specific "housing element," in which the locality explains how it will accommodate its share of statedetermined housing need, or the housing buffer, over the planning cycle. The housing element may spell out or incorporate by reference zoning, fees, and development standards and procedures applicable to the parcels. It must also identify local constraints to development of the planned-for housing, and set forth a schedule of actions to mitigate or remove unreasonable constraints. (3) A state-certified housing element, once enacted by the local government, becomes the local government's highest law with respect to land use, at least until the local government has produced its quota of housing for the cycle.310 It supersedes any contrary provisions found in local regulations, ordinances, ballot measures, the general plan, or the city or county charter. (This is the sense in which the model establishes a preemptive compact. A state-law framework empowers the local legislative body and the state agency acting together to preempt contrary local law, including law that the municipal legislature cannot override on its own, such as the city charter.) (4) To reduce information costs for developers and planning department staffers, housing elements should include an appendix listing any local ordinances, regulations, or charter provisions that the local government and the state agency agree to deem preempted by the housing element. Some such 308. Local officials might be less resistant to new housing if potential future residents were enfranchised to vote in local-government elections, but this would require a radical break with traditional civic arrangements. 309. See supra Subpart IV.A.
310. The state might allow local governments to restrict development in ways that contravene conuitments made in the housing element after the local government has produced its quota of housing for the cycle. 130 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
measures may be preempted as of the date of the housing element's enactment, while others may be preempted prospectively. (For example, the housing element might deem an identified constraint to be preempted in the future if it is not reformed by the date listed in the housing element's schedule of actions to ameliorate constraints.)
(5) To discourage local hamstringing of projects that comply with size and density conditions specified in the housing plan, the state should authorize developers and third-party interest groups to bring as-applied challenges to local regulations and procedures, while flipping the traditional presumption of consistency. Thus, just as California's HAA now stipulates that housing projects shall be deemed compliant with applicable standards if there is substantial evidence in the record that would allow a reasonable person to find the project compliant, housing projects should also be deemed exempt from any local procedure, fee, or other requirement if there is substantial evidence in the record that would allow a reasonable person to find the requirement, as applied to the project in question, inconsistent with the housing element.
(6) A housing element "substantially complies" with state law if (a) the state agency determines that the local government, operating with the housing element in place, is substantially certain to meet its housing quota, or (b) the agency concludes that achievement of the quota is uncertain, or infeasible without public subsidy, but that the housing element removes or appropriately commits the local government to removing all unreasonable or umecessary regulatory and procedural constraints to meeting the housing target.311 Courts should defer to the agency's certification decision if supported by substantial evidence. 312 The housing agency should have authority to establish, by regulation, classes of presumptively unreasonable constraints.
(7) A local government may amend its housing element during the planning cycle if the locality gives the state agency proper notice including written findings about whether the amendment would or would not render the housing element noncompliant.313 The agency may respond with suggestions, requests for further information, and, as appropriate, warnings about decertification. The local government shall again notify the agency upon adoption of the amendment, at which point the agency shall either recertify or decertify the housing element.314 Decertification would strip the housing element of its preemptive force vis-a-vis provisions of local law that 311. Here, a slight variation in word choice ("unreasonable" vs. "unnecessary") may end up being consequential, as "necessity" connotes a stricter standard than "reasonable." Note also that if the state adopts the "potential-housing buffer" approach at step (1), then housing element validity will usually be evaluated under (4)(b), because market conditions will not usually support a 30 50% expansion of the housing stock over the planning cycle even in the absence of regulatory constraints. 312. If the agency fails to act on a housing element within a brief period of time (say, sixty days), the element shall be deemed certified by operation of law.
313. If it proves necessary, the state could further strengthen the framework by stipulating that housing elements and housing-element amendments to which the state agency has properly objected may be adopted only through an exceptional local legislative procedure such as, for example, supermajority vote of the city council, or supermajority council vote followed by referendum approval. 314. If the agency fails to act within a reasonable period of time (say, sixty days), the housing element would be deemed recertified as a matter of law.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
take precedence over ordinary municipal legislation (such as provisions found in the charter or adopted by popular vote).
(8) Local governments shall report amually to the state housing agency on development applications received, applications approved and denied, time from submittal of application to final approval/denial, and anything else that the state agency deems reasonably necessary for monitoring implementation of housing elements.
(9) Local governments that lack a current, state-approved housing element, or whose housing element has been decertified, should face substantial and prompt pecuniary sanctions.
(10) If a local government fails to enact a certified housing element by the statutory deadline, the mayor, with the approval of the state housing agency, should be authorized to issue an interim housing element. 315 An interim housing element would have the same legal effect as a regularly adopted housing element, but shall lapse in (say) 180 days, unless reissued by the mayor and reconfirmed by the housing agency at that time. Development proposals submitted while an interim housing element is in effect shall be permitted on the basis of it, even if the permitting decision occurs after the interim element has lapsed or been replaced.

To be clear, neither California nor any other state has fully realized this model. As of this writing, California still falls short in several significant respects:

First, California has just begun to wrestle with the inadequacies of the population-forecast approach to determining housing need.316 The state is feeling its way toward an alternative, but the shape of what's to come is not yet apparent.

Second, it's doubtful that local governments may use the housing element to suspend constraints found in the city charter or adopted by voters, outside of extreme cases where the measure at issue unequivocally disables the local government from meeting its RHNA target. 317 Courts have done backflips to 315. For cities without a mayor-council form of government, the state could delegate authority to issue interim housing elements to the city manager, or to the president of the city council. Also, a state-approved interim housing element should either be exempt from review under the California Environmental Quality Act (CEQA), or subject to review but not subject to being enjoined if environmental review has not been completed prior to issuance of the housing element. CEQA-induced delays would defeat the whole point of interim housing elements namely, ensuring that local governments have an up-to-date, compliant housing element in place, and thereby avoiding the environmental and social harms associated with a lack of sufficient, appropriately located new housing.
316. See supra notes 211 222 and accompanying text.
317. The main source of the doubt is a provision stating, "Nothing in this article shall be construed to be a grant of authority .. with respect to measures that may be undertaken or required by a local government to be undertaken to implement the housing element of the local general plan." CAL. GOV'T CODE § 65589(c) (West 2019). Since municipal legislative bodies ordinarily lack authority to override voter-adopted or charterembedded measures, treating the housing element as superseding such measures would be tantamount to treating the housing element article of the government code as a "grant of authority" to municipal legislatures. For examples of extreme cases where voter-adopted measured were found to be preempted, see Bldg. Indus. Ass'n v. Oceanside, 33 Cal. Rptr. 2d 137 (Ct. App. 1994); Urban Habitat Program v. Pleasanton, No. RG06-293831 (Cal. Super. Ct. Mar. 12, 2010).
132 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
preserve voter-adopted measures that make it difficult, if not facially impossible, for the local government to accommodate its RHNA share. 318 Third, local governments can still throw up lots of barriers to housingelement-compliant projects. While recent reforms to the HAA prevent local governments from denying or reducing the density of a project on the basis of zoning that a reasonable person could deem inconsistent with the plan (including the housing element),3 19 the HAA does not exempt projects from fees, procedures, and other non-zoning constraints at cross purposes with the plan.

Finally, there is no established convention, such as a "preemption appendix," for giving low-cost notice to developers and planning staff about any features of the local development process that the local government agrees to deem preempted by the housing element.

Fourth, California has no provision for interim housing elements. One city, Encinitas, has gummed up the state framework with a charter provision requiring housing elements to be enacted by referendum vote. 320 The city's voters have consistently rejected the housing elements presented to them. 32 1 As the housing element becomes more legally consequential under state law, other cities are likely to parrot Encinitas unless the state neutralizes their efforts.

Fifth, the state legislature has not adopted an explicit, functional definition of what constitutes a "substantially compliant" housing element-although the definition proposed here is similar to the definition that HCD now uses, 322 and it's arguable that HCD's definition has been tacitly ratified by the legislature. 323 These caveats notwithstanding, California has certainly taken big steps toward the model I have sketched. The state has strengthened the preemptive force of the housing element and made it self-executing in key respects; 324 318. See, e.g., Shea Homes Ltd. v. Alameda, 2 Cal. Rptr. 3d 739 (Ct. App. 2003) (rejecting preemption claim because it was possible that the measure would not conflict with housing element, at least if voters approved certain measures in the future); cf Bldg. Indus. Ass'n of San Diego v. Encinitas, No. 37-2017- 00023267-CU-WM-NC (Cal. Super. Ct. Dec. 12, 2018) (declining to enjoin voter-approval requirement for future housing elements because the city's voters might behave reasonably in the future, notwithstanding their rejection of every housing element considered in the previous thirty years). 319. See supra text accompanying notes 238 242.
320. Bldg. Indus. Ass 'n of San Diego, slip op. at 4; Judge Orders the City of Encinitas to Adopt a Housing Element; City's First Since 1992, PUB. INTEREST LAW PROJECT (Jan. 9, 2019), http://www.pilpca. org/2019/01/09/encinitas-housing-element-order/ (noting that city has not enacted a housing element update for nearly thirty years). While the court order in Bldg. Indus. Ass 'n ofSan Diego counts as a onetime success, the court refused to enjoin Encinitas's voter-approval requirement prospectively, so the strategy of embedding voter- or supermajority-approval requirements in city charters may still be attractive to NIMBY activists hoping to gum up the housing-element process or pressure HCD into approving weak housing elements. 321. Barbara Henry, Encinitas Voters Turn Down City's Latest Housing Plan Ballot Measure, THE SAN DIEGO UNION-TRIBUNE (Nov. 7, 2018) https://www sandiegouniontibune.com/sd-no-housing-plan-20181107- story.html.
322. See Kautz, supra note 224 ("the Department's review considers the adequacy of information, program conuitments and timeframes to meet various statutory goals and objectives"). 323. Compare supra notes 182 184 and accompanying text (explaining traditional standard of review), with notes 222 229and accompanying text (arguing that recent legislation supports functional compliance standard, and noting HCD's gloss on substantial compliance).
324. See supra Subpart IIIA.2.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
housing-need determinations are now supposed to reflect national norms concerning "healthy housing markets; 325 the housing agency and (more tacitly) the legislature have pushed back against the traditional, deferential-to-localgovernments conception of "substantial compliance"; 326 and the legislature has subjected local governments that remain out of compliance to a schedule of escalating fiscal penalties. 327
B. THE CASE FOR THE MODEL
The case for my proposal depends on the nature of the problem to be solved. From the point of view of a YIMBY state legislator who, let us assume, is well versed in the relevant economics, political science, and legal-academic literatures, the problem of overcoming locally-erected baffiers to housing has the following salient features: extreme but geographically uneven preference conflict between state and local officials; substantial intracity conflicts over housing policy, at least in larger cities; asymmetric information (local governments have the advantage); a tradition of local control over land use; and weak or uncertain support in the statewide electorate for transferring control to the state.
(1) Extreme but geographically uneven preference conflict between the state government (which wants more housing) and the municipal actors responsible for zoning and project permitting, many of whom want to preserve the status quo.

As Part I explained, many local governments in expensive regions of the nation are dominated by homevoters who have strong financial interests in opposing new housing-especially housing in their neighborhoods-and who vote accordingly. Making the state/local conflict all the more intense is the fact that new housing can change local electorates in ways that threaten incumbent officeholders. Imagine a sleepy suburb of single-family homes that is compelled to permit five-story residential buildings within a half mile of transit stations, as a California lawmaker has proposed.328 In come thousands of new residents whose land-use preferences are likely to be quite different than those of the existing homeowners. 329 Local politicians who've built their brands serving 325. See supra Subpart IIIA.1.
326. See supra Subpart IIIA.2.
327. See supra Subpart IIIA.2. The legislature has also removed some exceptions that charter cities previously enjoyed. See S.B. 1333, 2017 2018 Leg. (Cal. 2018) (amending CAL. GoVT CODE § 65700 to apply consistency and other requirements to charter cities). These amendments respond to The Kennedy Comm'n v.

Huntington Beach, 224 Cal. Rptr. 3d 665 (Ct. App. 2017) (holding that charter cities are not required to make zoning and specific plans consistent with their housing element). 328. See supra text accompanying notes 281 283.
329. If the newcomers are renters, they'll support the development of more rental housing (though perhaps not in their neighborhoods). See Hankinson, supra note 69. And even as owners, they'll probably have a greater taste for density, and less willingness to pay for roads and parking, than existing residents who own dispersed single-family homes.
134 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
homogenous, single-family-home neighborhoods will have a strong personal incentive to block the change, not just to put on a show opposing it.

That said, the degree of state/local preference conflict over new housing is geographically uneven. The state wants a lot more housing in some places (near transit and employment centers), but not in others (environmentally sensitive lands, and places where prices haven't escalated). And among the local governments targeted for more housing, opposition to the state's agenda is likely to be much stronger in affluent, homogenous communities where nearly everyone is a homeowner than in mixed polities where renters make up a large share of the electorate. 330 Opposition may also be weaker in communities that elect their local governments at-large rather than by-district.3 3' (2) Intracity conflict over housing policy, the outcome of which may depend on procedural rules and the relative strength of the mayor and the city council.

Particularly in cities that are socioeconomically and housing-tenure diverse, housing policy is likely to be an ongoing source of political conflict and compromise rather than an issue on which homevoters always get their way.

Business interests may be forceful advocates for pro-growth policies, 332 while neighborhood groups will favor local restrictions. Mayors, to a first approximation, are likely to be more supportive of liberal housing policies than city councilpersons elected from territorial districts. 333 This is so because mayors answer to city-wide electorates, not district-specific constituencies (where neighborhood groups are well organized), and because mayors run in relatively expensive elections (making them more dependent on deep-pocketed business interests).334 As well, because of their higher profile, mayors have a better 330. But as Subpart I.B. explained, many big cities are also showing "NIMBY" characteristics. 331. See Michael Hankinson & Asya Magazinnik, How Electoral Institutions Shape the Efficiency and Equity of Distributive Policy (Sept. 17, 2019) (unpublished working paper), http://mhankinson.com/assets/ hankinson magazinnik.pdf (finding that shifts from at-large to by-district elections induced by the California Voting Rights Act caused substantial reductions in number of housing permits issued citywide). Researchers have also found that zoning was adopted earlier in cities that elected their councils by-district rather than atlarge, and that cities with by-district elections have more exclusionary zoning codes. See James Clingermayer, Distributive Politics, WardRepresentaton, and the Spread ofZoning, 77 PuB. CHOICE 725, 730, 733 34 (1993); James Clingermayer, Electoral Representation, Zoning Politics, and the Exclusion of Group Homes, 47 POL.

RES. Q. 969, 975 78 (1994). This is consistent with the idea that neighborhood/homevoter interests have more power under districted than at-large electoral systems. See Aaron Deslatte et al., Policy of Delay: Evidence from a Bayesian Analysis of Metropolitan Land-Use Choices, 46 POL'Y STUD. J. 674, 689 90 (2018) (finding that in cities with districted elections, the degree of building-industry concentration has weaker influence on permitting delays).
332. An increase in housing supply that brings down prices would raise the effective (real) wage paid to workers, at no cost to employers.
333. See Roderick M. Hills, Jr. & David Schleicher, Planning an Affordable City, 101 IOWA L. REv. 91, 112 15, 124 29 (2015) [hereinafter Hills, Jr. & Schleicher, Planning]. Notably, the pending California bills to upzone all land in the state near transit and job centers for four-to-five story buildings has (as of this writing) been endorsed by the mayors of San Francisco, Oakland, San Jose, Sacramento, and Stockton, but no endorsements from city council members have been announced. Scott Wiener (@,Scott Wiener), TWITTER (Jan. 17, 2019, 8:20 AM), https://twitter.com/Scott Wiener/status/1085934772717641728. 334. Hills, Jr. & Schleicher, Planning, supra note 333, at 112 15, 124 29.

December 2019] 135
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
chance than city members of developing a personal brand known to voters, 335 which may provide some buffering against the discontent of homevoters reacting to neighborhood change.

One consequence of these intracity conflicts (coupled with a lack of strong parties in municipal legislatures) is that the procedures through which land-use policy is developed can have big consequences for housing outcomes. 336 Specifically, as Rick Hills and David Schleicher have argued, a city's policy is likely to be more accommodative of new housing if it is forged through citywide grand bargains, rather than worked out seriatim through project- or site-specific decisions. 337 The seriatim, project-specific approach privileges the interests of those who have the most at stake in individual projects (like the neighborhood NIMBYs), 338 whereas the prospect of a grand bargain can activate groups that would benefit from a big citywide or regional increase in the supply of housing (such as employers and municipal labor unions), particularly if the mayor plays an agenda-setting role. 339
(3) Asymmetric information about how best to reconcile the state's desire for more housing with local preferences over urban form and community character.

YIMBY state legislators know they want a lot more housing, and higher density housing, in expensive regions of the state. But they probably have little if any idea about how to assemble a given number of units into a built-form package that minimizes public opposition in any given locale. The local officials who make project-approval decisions on a daily basis are likely to have a much better sense of this.
(4) A deeply rooted tradition of discretionary local control over land use, such that local governments have an enormous variety of tools with which to vitiate prescriptive mandates from the state.

We saw in Part III that state legislators are increasingly willing to tell local governments that they must allow certain types of housing (like ADUs), or certain densities of housing. But as evidenced by the nearly forty-year game of cat and mouse that California has played with local governments over ADUs, it's doubtful that nondiscrimination requirements ("treat housing type X the 335. See Christopher S. Elmendorf & David Schleicher, Informing Consent: Voter Ignorance, Political Parties, and Election Law, 2 U. ILL. L. REv. 363, 398 403 (2013). 336. More specifically, it is internal conflict plus the lack of meaningful partisan competition for control of city government that makes the procedural rules so important. See Roderick M. Hills, Jr. & David Schleicher, Balancing the "ZoningBudget," 62 CASEW. RES. L. REV. 81, 124 27 (2011) [hereinafter Hills, Jr. & Schleicher, Balancing].
337. See id; Hills, Jr. & Schleicher, Planning, supra note 333. 338. Cf Katherine Levine Einstein et al., Who Participates in Local Government? Evidence from Meeting Minutes, 17 PERSP. ON POL. 28, 28 46 (2019) (studying minutes of planning and zoning board meetings in the Boston area and finding that homeowners are vastly overrepresented among people who comment on land-use issues, and nearly always speak in opposition to proposed developments). 339. Business interests are hard to engage on individual projects (which considered in isolation have no tangible effect on the regional housing market), but will be highly motivated to lobby on proposals that would materially increase the total supply of housing in the labor markets from which they hire. See supra note 332. 136 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
same as housing type Y") or narrow mandates ("allow housing type X on parcels zoned for single-family homes") will actually result in local governments permitting a lot more housing. Such requirements do not prevent local agencies from exercising their permitting discretion to stymie projects they dislike, 340 or from enacting facially neutral ordinances that make the state-favored housing type tough to develop.

To be sure, California's HAA generally prevents local governments from denying or reducing the density of projects that comply with objective standards, but the Act does not prevent local governments from otherwise conditioning projects in extremely subjective ways.34' So it was that San Francisco's planning commission recently demanded changes to an infill condo development because the windows looked too upscale, 34 2 and turned back a small ADU-and-anaddition project because the commission thought the architect could improve the unit's internal layout.34 3 This kind of nitpicking leads to interminable delays, and positions anti-development factions to weigh down projects with uneconomic conditions.
344
(5) Weak or (at best) highly uncertain support in the statewide electorate for consolidating state control over zoning and development permitting.

Strong conflicts between state and local preferences often give rise to field preemption, 34 5 so perhaps it's not surprising that California has cut off most local discretion with respect to ADUs. Yet thoroughgoing state control over ADUs is probably tenable only because ADUs pose such trivial threats to neighborhood character and homeowner wealth. No interest group cares enough to wage a big battle against ADU mandates. At some point, though, strong pro-housing interventions by the state may engender serious pushback, such as a ballot initiative to constitutionalize local control over land use. 3 46 Should that occur, 340. See sources cited, supra note 36.
341. See CAL. GoVT CODE § 65589.50)(1) & (5) (West 2019). 342. See Laura Wenus, Development Delayed as SF Commission Wants Less Aggressive Design, MISSIONLOCAL (Feb. 24, 2017), https://missionlocal.org/2017/02/development-delayed-as-sf-conuiissionwants-less-aggressive-design! (quoting planning conuissioner Myrma Melgar, "Big windows, to me, are a statement of class and privilege").
343. See Scott Feeney (@graue), TWITTER (Aug. 23, 2018, 6:16 P.M.), https://twitter.com/gmue/status/1032798736160718849.
344. The HAA's distinction between density-reducing and non-density reducing conditions is rather arbitrary, because a significant risk of substantial conditions or delays will deter developers from even proposing redevelopment projects that are only modestly more profitable than the next best use of the land. 345. See generally Richard Briffault, Essay, The Challenge of the New Preemption, 70 STAN. L. REV. 1995 (2018) (exploring city-level enactment of liberal policies and state-level preemption of those same policies in states with Republican-dominated legislatures and Democratic cities). 346. In California, an umbrella organization of anti-housing activists recently formed to lobby the state and support allied candidates for local and state offices. See Livable California Celebrates Candidates, LVABLE CAL. (Nov. 10, 2018), https://www livablecalifomia org/second-post/ (documenting the group's actions). As of this writing, there are two pending state-constitutional "home rule" challenges to SB 35 the 2017 state statute which requires expedited, by-right permitting of certain projects if the local government has failed to meet its housing targets. See generally Petition for Writ of Mandamus and a Complaint for Declaratory Relief and Injunctive Relief, Huntington Beach v. State, No. 30-2018-00984280-CU-WM-CJC (Cal. Super. Ct. Apr. 4, December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
it's not at all clear that YJMBYs would prevail. Some recent opinion polls suggest that a supermajority of the California electorate objects to giving the state more authority over development permitting,34 7 although other polls find broad support for higher density housing near transit.348 Public opinion outside of California appears to be quite protective of local control, but there has not been much work on the subject.349
To sum up, the housing problem is a very tough nut: the preferences of local officials tend to diverge sharply from the preferences of the pro-housing faction in state government; local governments can vitiate state mandates by exploiting their permitting discretion, residual regulatory authority, and superior information; and state lawmakers who would like to wrest control of zoning and development permitting from local governments cannot count on support from the statewide electorate.
2018); Letter from Dee Williams-Ridley, City Manager, City of Berkeley Planning & Dev. Dep't, to Dana Ellsworth (Sept. 4, 2018), https://www.cityofberkeley.info/uploadedFiles/Clerk/Level 3_- _Geneml/1900%2OFourth%2OStreet%200904 i8.pdf (denying SB 35 permit application on ground that state law is unconstitutional). I expect the SB 35 challenges to fail, but their failure could catalyze a ballot initiative to expand cities' home rule powers over land use.
347. See USCDoRNSLIFE, USC DORNSIFE/Los ANGELES TIMES CALiFORNIA POLL (2018), https://domsife.usc.edu/unruh/past-polls/. The study found that, by a 3:1 margin, registered and likely California voters endorsed proposition that "[t]he authority to approve housing developments should remain primarily with cities and counties," as opposed to "[t]he state should have greater authority to approve housing developments than it does now." Id. at 8. It also found that voters are more than twice as likely to attribute housing unaffordability to "lack of rent control" and "lack of funding for low income housing," than to "too little homebuilding" or "restrictive zoning rules." Id. at 7. For more on this, see Carson Bruno, Californians See the Housing Affordability Crisis as a Threat to the California Dream, EUREKA (May 19, 2015), https://www.hoover.org/research/californians-see-housing-affordability-cisis-threat-califomia-drean (reporting results of Hoover Institution poll, finding that (1) while most Californians see housing affordability as a big problem, only about a third favor relaxing zoning or open-space requirements to accommodate more housing; and (2) that when respondents were asked about "new housing in your area," the only type of housing to receive majority support was single family homes with large yards). 348. See Californians & Their Government, supra note 69, at 5 (finding that "62 percent [of likely voters] favor requiring local governments to change zoning for new development from single-family to multi-family housing near transit and job centers").
349. Marble & Nail, supra note 69. The authors recently surveyed residents of the nation's twenty largest metro areas and found overwhelming support for "giving neighborhoods more voice over development proposals." See id. at 13, tbl.A-5. Conversely, they found a lack of support for "changing local laws to allow more construction." See id. They also asked about a hypothetical state law to require local governments to allow apartment buildings and found majority support only among those renters who also favor a national housing guarantee. See id. While one might think that liberal homeowners would be moved to support high-density housing, the authors show that self-interest trumps ideology. For a useful comparison, see Hankinson, supra note 69, at 491, figs. C8 & C9 (reporting results from national survey showing that in avemge-to-expensive cities, only about 25% of homeowners would support a 10% increase in the citywide housing supply, whereas about 500/-60% of renters in the same cities would support the policy); see also Andrew H. Whittemore & Todd K. BenDor, Exploring the Acceptability of Densification: How Positive Framing and Source Credibility Can Change Attitudes, 10 URB. AFF REv. 1, 24 28 (2018) (finding in a national survey that several positive frames reduced, rather than increased, homeowners' support for a denser-than-typical residential project in their neighborhood).
138 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
As the balance of this Subpart will explain, the model I have outlinedbuilding on and extending the recent California reforns-aims to crack the housing nut with complementary top-down and bottom-up forces. Applying pressure from above, the state would use the threat of fiscal penalties to get local governments to periodically revisit and liberalize their entire framework for housing development, including zoning maps, development standards and fees, permitting procedures, and anything else that might stand in the way of achieving the local government's quota of new housing. This periodic redefinition of the local regulatory baseline would occur in a manner that is politically discreet, sensitive to information asymmetries, and resistant to backsliding. The complementary, bottom-up strategy is to subtly shift the balance of local policyimaking authority toward more housing-tolerant factions, while giving these factions the ability to use state law to make credible regulatory-reform commitments.

1. From the Top Down: Baseline Change and Lock-In, Done Discreetly It should now be clear that if states are to curtail local barriers to the supply of housing, it is not enough to preempt discrete local rules, such as height and density limits near transit stations. Changes to the regulatory status quo must be backstopped against the evasive tactics of local governments wielding residual regulatory authority and permitting discretion. The bigger the intervention, the greater the need for backstopping.

There is one seminal example of a higher-level government acting under conditions of extreme preference conflict to change the regulatory status quo among lower-level governments, while effectively backstopping the new regulatory baseline against evasion: the Voting Rights Act of 1965 (VRA), 350 through which Congress overcame generations of black disenfranchisement in the South.35' The variation on the California model I have sketched represents an effort to borrow and adapt the VRA paradigm.

Structurally, the problem facing Congress in 1965 was in key respects quite similar to the problem faced today by state lawmakers trying to induce local governments to allow a lot more housing in areas of economic opportunity. In both cases, the central government wants local governments to heed the interests of a class of outsiders (blacks in the VRA example, would-be residents in the housing example), but the local governments don't allow the outsiders to vote in their elections, and the interests of the excluded outsiders are at war with the interests of those who do vote. 352 In both cases, adherence to the central 350. Voting Rights Act of 1965, Pub. L. No. 89 110, 79 Stat. 437 (1965). 351. See generally ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 206-17 (2009); J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION (1991). 352. There is also considerable evidence that opposition to new, higher-density housing is exacerbated by cultural or racial hostility to would-be newcomers, particularly among conservatives. See Jonathan Mummolo & Clayton Nail, Why Partisans Do Not Sort: The Constraints on Political Segregation, 79 J. POLITICS 45, 48 49 (2017) (showing that conservatives prefer racially homogenous neighborhoods); Trounstine, supra note 76, December 2019] 139
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
government's policies would transform local electorates in ways that could jeopardize incumbent politicians' hold on office.353 In both cases, preference conflict between the central government and local governments varies with geography. By the mid-20th century, black disenfranchisement was mostly a Southern phenomenon, and within the South, blacks were geographically concentrated.354
So, what did the federal government do about black disenfranchisement? Initially, it tried to enforce the 15th Amendment with affirmative litigation. 355 By the 1950s, many federal courts stood ready to enjoin unconstitutional discrimination against black voters, but prescriptive mandates in the form of injunctions didn't achieve much black enfranchisement. 6 When one discriminatory law was invalidated, another would be enacted to take its place.357 When voting registrars were personally enjoined from violating the rights of African Americans, they would resign and the jurisdiction would move to have the injunction lifted, thus positioning a newly appointed registrar to continue his predecessor's unconstitutional conduct.358 But with the VRA, the cat finally caught the mouse. Congress's solution for Jim Crow disenfranchisement was to ban one particularly damaging instrumentality of racial discrimination-tests of literacy and moral character as a prerequisite to voting359 -and to backstop the ban by conditionally preempting all changes to state and local electoral practices in the South.360 No electoral reform in the so-called "covered jurisdictions" could take effect unless approved by the U.S. Department of Justice or the District Court for the District of Columbia. 361
' The burden of proof in these preclearance proceedings was on the covered jurisdiction to show that the change was neither intended to make minority voters worse off ("retrogression"), nor likely to have that effect. 36 2 In at 10 (showing that "whiteness" of precinct is strongly correlated with support for growth controls, and that restrictive land use policies exacerbate racial segregation). 353. Cf supra text accompanying notes 328 329 (describing transformation of local electorate's land-use preferences that may result from introduction of dense residential buildings, especially rental buildings, into neighborhoods of single family homes).
354. On Southern politics and racial conflict at the time, see V.O. KEY, JR., SOUTHERN POLITICS IN STATE AND NATION (1949). Among jurisdictions covered by the Voting Rights Act of 1965, the share of the adult population that voted in the presidential election of 1964 was at least twelve percentage points lower than the national average. South Carolina v. Katzenbach, 383 U.S. 301, 300 (1966). 355. See SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 715 17 (5th ed. 2016); KEYSSAR, supra note 351; BRIANK. LANDSBERG, FREE ATLAST TO VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING RIGHTS ACT (2007).
356. ISSACHAROFF, ET AL., supra note 355; KEYSSAR, supra note 351; LANDSBERG, supra note 355. 357. ISSACHAROFF, ET AL., supra note 355; KEYSSAR, supra note 351; LANDSBERG, supra note 355. 358. ISSACHAROFF, ET AL., supra note 355; KEYSSAR, supra note 351; LANDSBERG, supra note 355. 359. Voting Rights Act § 4.
360. Voting Rights Act § 5.
361. Id.
362. Id. The retrogression standard is ajudicial gloss. See Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 328 (2000); Beerv. United States, 425 U.S. 130, 141 (1976). 140 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
short, Congress both changed the regulatory baseline for voting and locked in the new baseline with the preclearance mechanism.

It was an elegant solution. The ban on literacy and moral-character tests knocked out the principal source of local discretion with respect to voter registration, and thus the channel of sub rosa discrimination.363 Meanwhile, the preclearance framework adroitly navigated between two competing dangers: the risk that a covered jurisdiction would invent some discriminatory substitute for literacy tests, and the risk that the federal administrator would push the covered jurisdictions too hard, inducing so much local opposition as to inadvertently fell the whole regime. The substantive modesty of the retrogression standard, which allowed local governments to change their practices in any way that did not make minority voters worse off, limited the risk of administrative overreach.364 Conversely, the procedural requirement that covered jurisdictions bear the burden of proving that proposed changes were non-retrogressive made it difficult for subnational governments to exploit asymmetric information about the likely effects of a change. If the federal administrator couldn't tell whether a change would make minority voters worse off, the law required her to block it, unless or until the subnational government revealed why the change would not be retrogressive. 365
The VRA was enormously successful. Registration and turnout rates among African Americans in the South surged almost overnight.366 Several studies comparing adjacent "covered" and "noncovered" counties show that blacks in the covered jurisdictions realized huge gains in non-electoral domains as well, such as labor market outcomes. 367 Once blacks could vote, Southern politicians paid attention to their interests. 368
363. See Daniel S. Goldman, Note, The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REv. 611, 620 (2004), and sources cited therein. 364. It's not clear whether "retrogression" was the standard envisioned by Congress in 1965, but as glossed by the courts, see supra note 362, the VRA limits the risk of administrative overreach. 365. Reno, 528 U.S. at 320; Beer, 425 U.S. at 120.
366. See KEVIN J. COLEMAN, CONG. RES. SERV., THE VOTING RIGHTS ACT OF 1965: BACKGROUND AND OvERvIEw 12 13 (2014); see also Desmond Ang, Do 40-Year-Old Facts Stll Matter? Long-Run Effects of Federal Oversight under the Voting Rights Act (Harv. Kennedy Sch., Working Paper No. 18-033, 2018), https:ssrn.com/abstract-3271907 (estimating that long-run voter turnout in the covered jurisdictions increased by four-to-eight percentage points).
367. See generally Elizabeth U. Cascio & Ebonya Washington, Valuing the Vote: The Redistribution of Voting Rights and State Funds Following the Voting Rights Act of 1965, 129 Q J. ECONOMICS 379 (2014) (estimating effects on state spending on counties with large black populations); Abhay Aneja & Carlos Avenancio-Leon, Labor Market Effects of Minority Political Power: Evidence from the Voting Rights Act of 1965 (Oct. 2017) (unpublished manuscript) (on file with author) (estimating effects on black wages); Ang, supra note 366 (documenting long-run effects on voter turnout); Andrea Bernini et al., Race, Representation andLocal Governments in the US South: The Effect of the Votng Rights Act (CEPR Discussion Paper No. DP12774, Mar. 13, 2018) (estimating that VRA doubled black representation in local government in covered jurisdictions, relative to control counties).
368. In addition to the studies cited supra note 367, see Sophie Schuit & Jon C. Rogowski, Race, Representation, and the Voting Rights Act, 61 AM. J. POL. SCI. 513, 524 (2017) (showing effects on roll call votes of Members of Congress on civil rights legislation).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL V
The model I have sketched for housing is akin to the VRA, in that it combines baseline change with a preclearance-type lock-in mechanism. 369 A new regulatory baseline is periodically established through housing elements, and retrogression is controlled through centralized, pre-implementation review of housing-element amendments.

But there are also some significant differences. Most important, the new regulatory baseline for housing is negotiated administratively on a case-by-case basis, and periodically revisited, rather than prescribed by statute once and for all. 370 And whereas the VRA categorically eliminated the principal source of local "permitting discretion" with respect to voting, the housing framework tacitly delegates the analogous question to an administrative agency, which must decide whether the discretionary permitting arrangements of any given local government constitute unreasonable constraints on housing development.37' The lock-in mechanism also diverges somewhat from the VRA paradigm.

Whereas the VRA conditionally preempted the field of electoral regulation, barring local governments from changing any standard, rule, or procedure without federal preapproval, the California model for housing is much less draconian, even with the extensions I have proposed. Local governments remain free to enact or modify any rule or regulation that is subordinate to the housing element, without pre-implementation review. Indeed, local governments may unilaterally amend the preemptive compact itself (the certified housing element), putting the onus on the state to decertify the housing element or accede to the amendment. The regulatory baseline defined by the original compact is therefore "locked in" only to the extent that the local governing body fears the sanctions associated with decertification or wants to maintain the suspension of charter provisions or voter-approved measures that the certified housing element has superseded.372
369. One might suppose that the Fair Housing Act (FHA)-the federal government's 1960s-era response to discrimination in the housing market would offer a better model than the VRA. But the FHA (in contrast to the VRA) effected neither a clear revision to the regulatory baseline for new housing, nor a mechanism to prevent retrogression. At best, the FHA expressed an aspiration: no unnecessary, racially disparate impacts. See Tex.

Dep't of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2522 (2015). But the FHA depends entirely on case-by-case litigation (like 15th Amendment enforcement prior to the VRA), and the goal that informs FHA disparate-impact analysis canbe understood in two different and often mutually contradictory ways. See id. at 2548 50 (Alito, J., dissenting). Therefore, it's not surprising that the FHA's impact has been very limited. See Stacy E. Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims under the Fair Housing Act, 63 AM. U. L REv. 357, 421 (2013) (reviewing decades of case law and finding that housing-barrier challenges under the FHA almost never succeed).
370. See supra Subpart IVA.
371. See supra Subpart IVA (proposing definition of "substantial compliance," which calls for administrative review of reasonableness of any local barrier to achieving a locality's housing quota if achievement of the quota is uncertain).
372. Under both current California law and the extension that I have sketched, the state agency lacks authority to impose a housing element of its own design on a local government which is out of compliance. This distinguishes the model from standard "cooperative federalism" arrangements, which often authorize a federal agency to promulgate implementation plans on a state's behalf if the state fails to enact its own, federally 142 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
These departures from the VRA paradigm have an underlying logic: they accommodate the absence of a political consensus about metropolitan land use.

By the mid-1960s, when Congress passed the VRA, there had emerged an elite national consensus that blacks should be able to vote on the same terms as whites, and that no one should have to surmount a test of literacy or moral character, or pay a tax, as a prerequisite to voting.373 By contrast, there is today no readily articulable, state-level consensus about how much new housing should be planned for and where it should go. Nor has local discretion in development permitting come to be regarded as illegitimate. No doubt many homeowners are quite happy that their planning commission and city council can impose ad hoc limitations on nearby projects. The mantra of "local control over land use" elicits broad support in statewide surveys of public opinion. 374 Under these circumstances, the political genius of the emerging California model is that it should soon enable the state to bring about something functionally similar to a statewide zoning and development code, without quite appearing to do so. More precisely, the governor will be well positioned to bring this about if California authorizes the housing agency to plump up regional housing quotas on the basis of market conditions; settles on a functional definition of housing element "substantial compliance"; clarifies that certified housing elements supersede all local law to the contrary, including charter and voter-enacted provisions; and establishes evidentiary and procedural rules (such as the proposed extension of the Housing Accountability Act) that make it feasible for developers to get plan-compliant projects exempted from cumbersome local rules that were not authorized by the housing element. 375 The first two steps are necessary to prevent restrictive local governments from dodging meaningful administrative scrutiny of their housing restrictions (by showing either that their housing element notionally "contains the elements mandated by statute," 376 or that they will meet a trivial housing target even with substantial constraints in place). The third and fourths steps are necessary to make the theoretical preemptive effect of the housing plan a practical reality.

Once California completes these steps, the set of local housing elements, viewed as a whole, will be akin to a statewide zoning and development code for an ample quantity of new housing. The housing elements, locally drafted but approved by a state agency, will control the basic size-and-density terms for development. The state agency, under control of the governor, can be expected to establish fairly aggressive housing targets, and generally to review housing elements with an exacting eye. This is so because the governor, of all the state's approved plan. Cf Dave Owen, Cooperative Subfederalism, 9 U.C. IRVINE L. REV. 177, 186 88 (2018) (discussing federal Clean Water Act in relation to state-local cooperative programs). 373. See Bruce Ackerman& Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. REV. 63, 72 (2009).
374. See supra notes 347 349 and accompanying text.
375. These conditions correspond to Elements of the Model (1), (6), (3), and (5) respectively, per supra Subpart IVA.
376. See supra notes 182 184 and accompanying text.

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL V
elected officials, is likely to be the most reliably supportive of pro-housing policies. The governor answers to the statewide electorate, not just to homeowners in the high-cost regions. The governor runs in expensive statewide elections, which means that deep-pocketed business interests are likely to have her ear as well.377 Gubernatorial elections are also relatively high-turnout and high-information affairs, which makes them hard for homevoters to control.378 And because the governor's capacity to carry out her non-housing agenda depends on tax revenue, the governor should be quite sensitive to housing bottlenecks on economic growth.379
Yet even as housing elements in the aggregate would function like a preemptive statewide zoning and development code, the rules that apply within the territory of a local government will have been proposed initially by that government, negotiated with the state in a low-limelight administrative setting, and codified as a component of the locality's own general plan, rather than as state law. The housing element's dejure status as local law, and the obscure process through which state approval is obtained, should help state legislators parry any accusation that they have imposed a statewide zoning map.

The local prerogative to draft the housing element means that local governments have substantial leeway to decide how best to reconcile the state's housing objectives with local preferences over the built environmental and community character. Importantly though, under the test for substantial compliance that I have proposed, a local government could only avoid administrative scrutiny of the reasonableness of its zoning, development standards, procedures, and fees if the local government persuades the state agency that the locality is "substantially certain" to meet its housing target. 380 Much as the VRA's evidentiary standards encouraged covered jurisdictions to come forward with evidence about the likely effects of a proposed election-law change, 38' so too does the proposed test for substantial compliance encourage local governments to rectify information asymmetries in housing element review, either by sharing information about local conditions with the state or by committing to development standards and procedures that render 377. Cf Liam Dillon, How California's Candidates for Governor Want to Fix the State 's Housing Prohb lems, L.A. TIMES (May 10, 2018), https://www.latimes.com/politics/la-pol-ca-govemor-housing-roundup-201805 10- hitmlstory.html. (summarizing housing positions platforms of leading candidates for Governor of California in 2018, nearly all of whom took strong positions in favor of expansion of supply). 378. See Elmendorf& Schleicher, supra note 335, at 398-403 (reviewing literature); J. Eric Oliver & Shang E. Ha, Vote Choice in Suburban Elections, 101 AM. POL. Sci. REv. 393, 404 (2007) (finding that homeowners are vastly overrepresented in suburban local government elections relative to their share of the voting-eligible population, and that their vote choice in these elections is informed more by particular issues or personal knowledge of candidates rather than partisanship); Joseph T. Ornstein, Municipal Election Timing and the Politics of Urban Growth (Apr. 30, 2018) (unpublished manuscript) (on file with author) (finding that off-cycle local government elections, which result in lower turnout, lead to more restrictive housing policies). 379. See supra Subpart I.C.3.
380. See supra Subpart W.A. (element #6).
381. See Christopher S. Elmendorf& Douglas M. Spencer, Administering Section 2 of the Voting Rights Act after Shelby County, 115 COLUM. L. REv. 2143, 2154 (2015). 144 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
inconsequential phenomena that are hard for the state to see. 382 Similarly, the proposed evidentiary standard for project-specific preemption challenges would give local officials a strong incentive not to hide local development requirements by omitting them from the housing element's analysis of constraints. If a statecertified housing element openly acknowledges and justifies a restriction, the local government would have a strong argument that no reasonable person could deem normal applications of that restriction inconsistent with the housing element. But if the constraint is not acknowledged in the housing element, and if it materially delays, downsizes, or raises the cost of a developer's plancompliant project, project proponents would have a strong case for an exemption and the local government would be on the hook for proponents' legal fees.

Notice also that to the extent that there does emerge a political consensus about unacceptable land-use controls-either in general or as to certain retrograde local governments-the state housing agency could easily incorporate these norms into its review of housing elements. For example:
* The agency could amounce that, as a general matter, it will deem housing elements not to have "remov[ed] all unreasonable regulatory and procedural constraints '
383 unless the housing element requires local
authorities to process development applications exclusively on the basis of procedures, standards, and fee schedules that were published on the planning department's website prior to date on which the developer's application was deemed complete.384 The informational costs and project risks generated by a local government's failure to commit to this transparency principle arguably represent an unreasonable constraint on housing production.
* The agency could announce that, as a general matter, discretionary permitting of housing-element-compliant projects will be deemed to be an "unreasonable constraint" if the jurisdiction failed to meet its housing target during the previous planning cycle.385 This would put pressure on local governments to commit to ministerial permitting through their housing element.386
* The agency could push local governments whose development permitting is unusually slow to enact, through their housing elements, a 382. For example, the preferences of local officials who review permit applications. 383. See supra Subpart W.A. (element #6).
384. SB 330, enacted just before this Article went to press, prohibits local governments from applying to a project "ordinances, policies, and standards" not in effect when the developer's preliminary application was submitted. See S.B. 330, 2018-2019 Leg. (Cal. 2019) (adding CAL. Gov'T CODE § 65589.5(o) (West 2019)).

Because of SB 330, there's no longer much reason for HCD to try to bring about similar local commitments through housing element review. I retain the example mainly to illustrate how reforms that housing advocates have pursued through the legislature could just as easily (and often more easily) be pursued in the administrative arena, under a robust housing element / state review framework. 385. Oregon's state planning agency has ordered local governments to eliminate discretionary approval standards vis-a-vis "needed housing." See, e.g., BILL KLOOS, FAIR HOUSING COUNCIL OF OREGON PLANNING FOR HOUSING: DON'T FORGET THE BASICS 18 (May 15, 2008) (citing LCDC Compliance Order (Aug. 23, 1982) and StaffReport (Aug. 19, 1982) at 28-19); id. (citing LCDC Work Task Order 02-WKTASK-00 1412, at 4 (June 27, 2002) (faulting planned development overlay zoning for insufficient clarity). 386. The commitment would be credible since the housing element is the highest law of the local government, and because amending the housing element risks decertification.

December 2019] 145
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
local fix for gaping loopholes in the Permit Streamlining Act.387 This California statute stipulates that if a public agency fails to complete its review of a project within a designated period of time, the project shall be deemed approved as a matter of law. But the clock starts to run only after the agency has completed environmental reviews, 388 and the clock is tolled by internal appeals. With an eye to chinking these gaps, the housing agency might announce that as to jurisdictions whose permitting times were very slow during the previous cycle (and which failed to meet their targets), the agency will deem the local government to have "unreasonable constraints" unless the housing element includes a deemed-approved proviso limiting review of plan-compliant projects to (say) twelve months, inclusive of environmental studies and internal appeals. 389
As valuable as it would be to empower the housing agency to establish such norms by regulation, it is equally important that the framework not require any of this. The agency should be allowed to proceed case-by-case rather than by general rule if it wishes. The agency should be able to issue loose guidelines rather than firm rules, or rules that establish only rebuttable presumptions, thereby retaining flexibility to make politically inforined judgements about what different local governments will tolerate. Because the strength of state/local preference conflict over housing varies geographically, and because some communities have greater political resources for pushing back than others, a state-law framework for boosting the supply of housing needs this flexibility.

2. From the Bottom Up: Strengthening Pro-Housing Actors in City Politics, and Facilitating Regional Deals
While top-down pressure applied through housing-element review and preclearance of amendments is central to the framework I have sketched, it is not everything. My extension of the California model would also strengthen the hand of local actors who favor more accommodative housing policies, in ways that go considerably beyond what California has achieved to date.

For example, city councils would be able to unfetter themselves from voter-enacted growth controls and permitting rigmarole-and to do this without going to the voters, and while deflecting blame to someone else. A council would need only to obtain the state agency's approval of a housing element that conflicts with the problematic voter-adopted constraints. If homevoters complain, the city council can respond, "The state pushed us to do it; we had to or else we'd lose funding." And if homevoters gripe to the governor or the 387. For citations to the provisions of the Permit Streamlining Act mentioned in this paragraph, see supra note 195.
388. That is, environmental review under CEQA. See supra note 195. 389. To be sure, a housing element's "deemed approved" provision could not, as such, exempt the local government from otherwise applicable state law such as CEQA. But CEQA review is only triggered by discretionary government actions. See BARCLAY & GRAY, supra note 192, at 144. And if the housing element commits the local government to approving projects ministerially (at least after a certain period of time following project submission), then CEQA would become inapplicable at that time. 146 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
housing agency, the state-level actors can answer in kind: "All we did was approve your city council's proposal for accommodating a reasonable amount of new housing. If you want it done differently, tell them, but don't complain to us.

Notice also that the proposed framework gives the city council a menu of options, varying in certainty and transparency, for displacing problematic local constraints to new housing. At one end of the spectrum, the council could list a local rule or practice in the housing element's appendix as one which is "deemed preempted" as of the date of the housing element's enactment. This would be tantamount to voting to repeal the constraint, except that doing it through the housing element may help shift some blame to the state. At the other end of the spectrum, the council could simply omit certain known constraints from the list of constraints that the housing element acknowledges and justifies. This would set up developers to argue for project-specific exemptions on the theory that a reasonable person could deem the constraint inconsistent with the housing element. At the same time, city lawmakers could plausibly deny that they ever intended to preempt the constraint. An intermediate option is to list the constraint in the housing element's appendix with a future date of preemption, stipulating that it shall then be preempted if not reformed beforehand. 390 This would shift the burden of legislative inertia to defenders of the constraint while foisting political responsibility for the tough choice of what to do about it onto a future city council. In sum, the menu of options allows the city council to tailor its constraint-alleviation strategy to the political exigencies of the moment.

To be sure, city councils are not reliably pro-housing actors.39 ' Given the choice, some will jealously defend local constraints on housing development.

Still, survey evidence suggests that many city council members understand the housing-supply problem and would like to do something about it, but feel hemmed in politically.39 2 A state-law framework that positions city councils to remove constraints while dodging blame should do some good, perhaps especially with respect to older, voter-adopted constraints whose undoing may seem less an affront to today's electorate.

My adjustments to the California model would also bolster mayors vis-.- vis city councils in negotiations over the housing element. (As explained above, 390. To similar effect, the housing element could state that certain densities or floor-to-area ratios for designated sites will be made available by a specified future date. See supra note 242 (arguing that such conunitments are already directly enforceable through project-specific litigation under the HAA). 391. If elected from territorial districts, they will tend to be responsive to homeowner interests in the neighborhood. See supra note 333 and accompanying text. 392. See PAUL G. LEWIS & MAX NEIMAN, CITIES UNDER PRESSURE: LOCAL GROWTH CONTROLS AND RESIDENTIAL DEVELOPMENT POLICY 41 51 (2002) (concluding, based on survey of local officials in California, that most city members have neutral or pro-growth attitudes toward housing, but are often cowed by grassroots, anti-growth factions); see also Michael Manville & Taner Osman, Motivations for Growth Revolts: Discretion and Pretext as Sources of Development Conflict, 16 CITY & COMMUNITY 66, 70 (2017) (arguing, based on several case studies, that voter-adopted growth controls often result from perception that city councils too readily grant variances and rezonings to accommodate developers).

December 2019]
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
mayors are likely to be more supportive of liberal housing policies.)393 The key move is to authorize mayors to promulgate interim housing elements if the state's deadline has passed without the local government enacting a compliant housing element using the normal, locally prescribed procedures. Once mayors have this power, city councils will make generous concessions ex ante to the mayor, in the hopes of avoiding a veto or other mayorally induced delay of the council's housing element.

Notice finally that my extension of the California framework would powerfully support bottom-up initiatives to plan for more housing in a region.

Consider by way of illustration the recent efforts of the Metro Mayors Coalition in Greater Boston and the Committee to House the Bay Area ("CASA") in the San Francisco Bay Area.394 In each case, a regional planning entity convened a consortium of elected officials, 395 and the consortium developed quantitative targets for new housing in the region as well as guidelines for zoning and development-permitting reforms. 396 These efforts build on Rick Hills and David Schleicher's important insight that land-use policy is likely to be more accommodative of new housing if it can be forged through grand bargains on citywide or larger scales, rather than worked out seriatim through project- or site-specific upzonings and downzonings. 397
As Hills and Schleicher acknowledge, the central challenge for the grandbargain approach is "designing an enforcement mechanism." 398 What is to keep individual members of a city council from defecting, once community groups and nearby homeowners start complaining about specific projects in the councilmember's district? Or, at the regional level, what is to keep the municipalities that forge a Greater Boston or Greater Bay Area plan from reneging on their commitments to one another? California's experience since the early 1980s with its RHNA process suggests that regionally coordinated plans are worthless if the plans don't actually compel local governments to remove development constraints or issue building permits. 399
393. See supra text accompanying notes 333 335.
394. See Tim Logan, Citing "Housing Emergency," 15 Mayors Pledge to Boost Construction, BOS. GLOBE (Oct. 2, 2018), https://www.bostonglobe.com/business/2018/10/02/citing-housing-emergency-local-mayorspledge-dmmatically-boost-construction/plYlzBr3OoM6W6la3LIzTL/story.html (reporting on announced goal of 185,000 new units by 2030, a tripling of the rate of housing relative to the previous decade); Rachel Swan, BayArea Leaders Propose Aggressive HousingFix, and New Agency to Get It Done, S.F. CHRONICLE (Dec. 12, 2018), https://www sfchronicle.com/bayarea/article/Bay-Area-leaders-propose-aggerssive-housing-fix13461969.php. 395. The CASA consortium includes business, labor, and interest group leaders, as well as elected officials.

See CASA Membership Roster, METRO. TRANSP. COMM'N, https://mtc.ca.gov/our-work/plans-projects/casaconuittee-house-bay-area/casa-membership-roster (last visited Nov. 6, 2019). 396. See supra note 394.
397. See Hills, Jr. & Schleicher, Planning, supra note 333, at 170; Hills, Jr. & Schleicher, Balancing, supra note 336, at 90 96.
398. Hills, Jr. & Schleicher, Planning, supra note 333, at 125. 399. See supra Subpart JIB.2.
148 [Vol. 71:79
Agenda Item #5.1.

BEYOND THE DOUBLE VETO
But consider how the Metro Mayors and CASA undertakings could play out if the parent state had the legal framework I have sketched in place.

Quantitative housing goals set by the collaborative would probably become de facto floors for the state's housing-need assessment for the region. Knowing that there's a regional-elite consensus for a certain amount of new housing, the state's housing agency would have little reason to demand less.400 Similarly, the collaborative's guidelines for zoning and regulatory reform would inform the agency's review of "constraints" under housing elements submitted by local governments in the region. If most of the region's local governments have, through the collaborative, condemned a particular baffier to development, the state housing agency would have a strong political and legal basis on which to disallow it in that region, if not elsewhere. 40 1 Moreover, commitments made in housing elements to remove such constraints would be credible, both because constraints listed in the preemption appendix would automatically sunset on the specified date, and because any later-adopted substitute for such constraints would be vulnerable to an as-applied preemption challenge.

If the understandings reached through Metro-Mayor type collaboratives can be enforced in these ways, it should be much easier to motivate local officials to join the regional planning efforts in the first instance. As well, the interest groups that stand to benefit from a big increase in the regional housing supply, such as chambers of commerce and municipal unions, would have strong incentives to lobby the collaborative. 40 2

3. Caveats
The model I have sketched holds considerable promise, and to operationalize it in the West Coast Model states (especially California) would require only modest tinkering with extant state-law frameworks. But the model's limitations should be acknowledged, too. Some NIMBY governments may manage to exploit their superior information about local conditions to bamboozle the state agency into certifying dysfunctional housing elements. 40 3 Other NIMBY localities may be able to get the agency to approve transparently 400. This assumes there's some play in the joints of the housing need determination. As explained above, California recently revised the statutory framework governing this determination in ways that give considerable discretion to the housing agency. See supra Subpart IIIA. 1. 401. Opposition to the constraint by leaders of a supermajority of the local governments suggests that it is probably unreasonable in light of regional housing needs. 402. No doubt NIMBY groups will organize to lobby the collaborative too, but it may be harder for them to get homeowners riled up by the collaborative's policy proposals, as opposed to tangible projects in the homeowner's neighborhood.
403. This risk is exacerbated by resource shortages at the California housing agency. See LAO, Do COMMUNITIES ADEQUATELY PLAN, supra note 244, at 7 (noting that as of 2017, HCD had only a $1 million budget line and seven staff persons for housing element review). The main advantage of state-mandated upzoning (for example, requiring local governments to allow four-to-five story buildings on all parcels near transit), relative to the housing-element approach, is that state-mandated upzoning obviates the risk of local governments "complying" by assigning their quota to hard-to-develop sites.

December 2019] 149
Agenda Item #5.1.

HASTINGS LA WJOURNAL [
awful housing elements by arguing that the dysfunctional features are necessary to forestall a local insurrection. 40 4 Finally, as economists and legal scholars have long argued, there is always some risk that state institutions for regulating land use will end up serving regional homevoter cartels. 405 This risk must be weighed, however, against the reality of extreme supply constraints in the absence of state control, and the potential payoff from using state law to empower a relatively pro-housing set of actors at the local level.

CONCLUSION
Fifty years in the making, the problem of local barriers to housing supply in economically productive regions is finally having its moment in the sun. To the present moment of possibility, this Article has contributed both a descriptive account of the state frameworks for controlling local housing-supply restrictions, and an extension and defense of the model toward which our nation's most expensive and supply-constrained state, California, seems to be evolving.

The model is one of preemption by intergovernmental compact. The state periodically establishes regional housing-production targets, which are divvied up among local governments. Local governments must submit to the state housing agency a parcel-specific plan for how they will meet their quotas, including a schedule of actions to remove local constraints on the development of housing. Once approved by the agency and enacted as a local ordinance, this plan-the "housing element"--becomes the highest law of the local government with respect to land use. Developers may apply for building permits on the authority of the housing element itself. Local governments seeking to amend their housing element must provide notice and a written justification to the state's housing agency, and the agency may respond by decertifying the housing element, exposing the local government to pecuniary and possibly regulatory sanctions.

While "double vetoes"--opportunities under state law to overturn locally approved development permits-are certainly one legacy of the states' land-use interventions since the 1960s, they're no longer the whole story. The statutory evolution charted in this Article is now positioning advocates to use state law, and state-approved housing plans, to challenge not project approvals, but the local regulations and exercises of permitting discretion that stand in the way of desperately needed new housing.
404. For example, San Francisco's (HCD-approved) housing element tries to justify extant constraints that "conserve and protect existing housing and neighborhood character" by arguing that without such constraints, "an even greater check on new housing construction could result from public opposition to new development." 2014 HOuSING ELEMENT, supra note 178, at 1.86.
405. See supra text accompanying notes 205 209.
150 [Vol. 71:79
Agenda Item #5.1.

DATE DOWNLOADED: Thu Apr 27 17:19:38 2023
SOURCE: Content Downloaded from HeinOnline
Citations:

Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Moira O'Neill, Giulia Gualco-Nelson & Eric Biber, Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates, 25 Hastings ENVT'l L. J. 1 (2019).

ALWD 7th ed.

Moira O'Neill, Giulia Gualco-Nelson & Eric Biber, Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates, 25 Hastings Envt'l L. J. 1 (2019).

APA 7th ed.

O'Neill, M., Gualco-Nelson, G., & Biber, E. (2019). Developing policy from the ground up: examining entitlement in the bay area to inform california's housing policy debates. Hastings Environmental Law Journal, 25(1), 1-84.

Chicago 17th ed.

Moira O'Neill; Giulia Gualco-Nelson; Eric Biber, "Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates," Hastings Environmental Law Journal 25, no. 1 (Winter 2019): 1-84 McGill Guide 9th ed.

Moira O'Neill, Giulia Gualco-Nelson & Eric Biber, "Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates" (2019) 25:1 Hastings Envt'l L J 1.

AGLC 4th ed.

Moira O'Neill, Giulia Gualco-Nelson and Eric Biber, 'Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates' (2019) 25(1) Hastings Environmental Law Journal 1 MLA 9th ed.

O'Neill, Moira, et al. "Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates." Hastings Environmental Law Journal, vol. 25, no. 1, Winter 2019, pp. 1-84. HeinOnline.

OSCOLA 4th ed.

Moira O'Neill, Giulia Gualco-Nelson & Eric Biber, 'Developing Policy from the Ground Up: Examining Entitlement in the Bay Area to Inform California's Housing Policy Debates' (2019) 25 Hastings Envt'l L J 1 Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting.
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use:

Copyright Information
Agenda Item #5.1.

Developing Policy from the Ground Up: Examining
Entitlement in the Bay Area to Inform California's
Housing Policy Debates
Moira O'Neill,' Giulia Gualco-Nelson,2 and Eric Biber 3 *Acknowledgements: We would like to thank the Silicon Valley Community Foundation for providing funding support for this research, and acknowledge the support of a team of talented students that assisted with research, including: Terry Chan, Madison Delaney, Shreya Ghoshal, Madeline Green, Megan Grosspietsch, Grace Jang, Heather Jones, Claire Kostohryz, Rachel Kramer, Erin Lapeyrolerie, Adrian Napolitano, Maxwell Radin, Raine Robichaud, Colette Rosenberg, Alicia Sidik, Nathan Theobald, Helen Veazey, Dulce Walton Molina, Kenneth Warner, Dean Wyrzykowski, and Luke Zhang. Thanks to Chris Elmendorf for helpful comments. Human Subjects Statement: The Institutional Review Board for Human Subjects Research at University of California at Berkeley reviewed and approved all research protocols.

1. Senior Research Fellow, Center for Law, Energy, and the Environment, Berkeley Law and Associate Research Scientist in Law & City Planning, Institute of Urban and Regional Development, University of California, Berkeley; Adjunct Assistant Professor and Associate Research Scholar, Urban Community and Health Equity Lab, Columbia University.

2. Associate Research Scholar, Urban Community and Health Equity Lab, Columbia University; Affiliate, Center for Law, Energy, and the Environment, BerkeleyLaw, University of California, Berkeley.

3. Professor of Law, BerkeleyLaw, University of California, Berkeley.

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019

TABLE OF CONTENTS
IN TRO D U CTIO N ..................................................................................... 5 PART I" BACKGROUND ...................................................................... 7 A. NAVIGATING THE LAW APPLICABLE TO ENTITLEMENT
PROCESSES IN CALIFORNIA ......................................................... 7

1. LOCAL LAW GOVERNING INFILL DEVELOPMENT ..................... 8

2. ENVIRONMENTAL REVIEW UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT .................. 12 a. LOCAL GOVERNMENTS OFTEN DETERMINE CEQA's
APPLICABILITY ........................................................... 12 b. THE DISCLOSURE REQUIREMENTS UNDER CEQA .......... 14 c. THE PUBLIC PARTICIPATION REQUIREMENTS OF
C E Q A ...................................................................... . . 16 B. WHAT PRIOR RESEARCH HAS TOLD US ABOUT THE IMPACT OF

CALIFORNIA'S LAND USE REGULATIONS ON HOUSING SUPPLY
AND SPATIAL EQUALITY ........................................................... 17

1. UNDERSTANDING LAND USE REGULATION AS A
CONSTRAINT ON SUPPLY .................................................... 18 a. EXPLORING STRINGENCY AND CONSTRAINTS ON
HOUSING SUPPLY THROUGH NATIONAL SURVEYS .......... 20
b. EXPLORING STRINGENCY AND CONSTRAINTS ON

HOUSING SUPPLY THROUGH A STATEWIDE OR
REGIONAL SURVEY ..................................................... 25 c. EXPLORING SUPPLY CONSTRAINTS THROUGH THE
CASE STUDY APPROACH ............................................. 28

2. UNDERSTANDING LAND USE REGULATION AS A TOOL OF

EX CLU SIO N ........................................................................ 3 1 C. HOW THE LIMITS OF PAST RESEARCH MAKE IT CHALLENGING
TO INFORM PROPOSED LEGAL REFORM ...................................... 35 P A R T II: M ETH O D S ............................................................................. 36 A. CHOOSING STUDY SITES: FOCUSING FIRST ON THE BAY
A RE A ........................................................................................ 37 B. ANALYZING THE LAW: CREATING PLANNING AND
DEVELOPMENT ORDINANCE SUMMARIES .................................. 39 C. ANALYZING THE PROJECTS: BUILDING THE ENTITLEMENT
D A T A B A SE ................................................................................. 39

1. DEFINING FIVE OR MORE RESIDENTIAL UNITS ................... 39

2. DEFINING PROJECT YEARS: 2014, 2015, AND 2016 ........... 41

3. EXTRACTING THE PROJECT DATA ...................................... 45 D. DIVING DEEPER INTO LOCAL CONTEXT: IN-DEPTH INTERVIEWS W ITH KEY INFORMANTS ........................................................... 47 PART III: FINDINGS ......................................................................... 49 Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
A. ALL RESIDENTIAL DEVELOPMENT OF FIVE OR MORE UNITS IS

DISCRETIONARY IN THESE CITIES, AND EACH CITY IMPOSES

DISCRETIONARY REVIEW AT MULTIPLE POINTS IN THE
ENTITLEM ENT PROCESS ............................................................. 49 B. FOUR OF THESE CITIES ARE ALL EMPLOYING STATE LEVEL

SUSTAINABILITY INITIATIVES TO FACILITATE AND EXPEDITE
ENVIRONMENTAL REVIEW FOR DEVELOPERS ............................. 51 C. USE OF CEQA EXEMPTIONS VARIES ACROSS CITIES .................... 57 D. THERE IS SUBSTANTIAL VARIATION IN ENTITLEMENT

TIMELINES ACROSS THESE FIVE CITIES THAT DOES NOT

APPEAR TO CORRESPOND WITH STRINGENCY IN EITHER

ENVIRONMENTAL REGULATION OR LOCAL ENTITLEMENT
PROCESSES, OR PROJECT SIZE .................................................... 58 E. SUBSTANTIAL VARIATION IN HOUSING PROJECT ENTITLEMENT

ACROSS THESE FIVE CITIES EXISTS DESPITE REGULATORY
STR IN G EN CY ............................................................................. 6 1 F. MOST OF THE PROJECTS ENTITLED WITHIN THESE THREE

YEARS INVOLVE THE DEVELOPMENT OF HOUSING WHERE
THERE W AS NONE ....................................................................... 64 G. DEED-RESTRICTED AFFORDABLE HOUSING ENTITLEMENT IS
LOW ACROSS ALL JURISDICTIONS; HOWEVER,

DEED-RESTRICTED AFFORDABLE HOUSING BENEFITS FROM
FASTER APPROVAL TIME FRAMES ............................................... 65 H. SAN FRANCISCO, REDWOOD CITY, OAKLAND, AND SAN

JOSE ALL PROVIDE FOR DENSITY AND DEVELOPMENT

INCENTIVES TO PROMOTE TRANSIT-ORIENTED DEVELOPMENT

THAT HAVE CAUSED DEVELOPERS TO SITE MOST
DEVELOPMENT IN THESE GROWTH INCENTIVE ZONES ................ 67 I. VERY FEW OF THESE ENTITLED PROJECTS WERE
CHALLENGED IN COURT ........................................................... 68 J. ADMINISTRATIVE APPEAL RATES ARE MUCH HIGHER THAN
CEQA LITIGATION RATES WITHIN THESE FIVE CITIES ............... 71 PART IV : D ISCUSSIO N ......................................................................... 72 A. IN THESE CITIES, TIME LAGS IN ENTITLEMENT (AND

ASSOCIATED COSTS) ARE MORE LIKELY DRIVEN BY LOCAL
FACTORS, NOT CEQA OR ITS REQUIREMENTS .............................. 72 B. VARIABILITY AND UNCERTAINTY IN THE ENTITLEMENT

PROCESS ACROSS THESE JURISDICTIONS MAY BE A MORE

CRITICAL FACTOR INFLUENCING ENTITLEMENT TIMELINES
THAN STRINGENCY ..................................................................... 74 C. UNEVEN LAND USE REGULATION ACROSS A CITY MAY
OPERATE AS A TOOL OF EXCLUSION ......................................... 77 Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 D. MORE DATA IS NEEDED ABOUT THE RISK OF DISPLACEMENT
THROUGH NEW DEVELOPMENT ................................................ 78 E. STATE LEVEL REFORM PROPOSALS THAT WOULD REDUCE
LOCAL AUTHORITY REQUIRE BETTER DATA .............................. 78 F. THE STATE SHOULD NOT ONLY MANDATE, BUT DIRECTLY
SUPPORT GOOD DATA REPORTING ............................................. 80 CONCLUSION: COMPLEX ISSUES REQUIRE A MULTI-PRONGED
RESEARCH APPROACH ........................................... 83 Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
Introduction
Reducing vehicle miles traveled through increasing the use of public transit and improving transit access is critical to reduce greenhouse gas ("GHG") emissions in California. Housing development properly focused in infill areas with transit accessibility (transit-oriented development or "TOD") may significantly reduce greenhouse gas emissions if it increases transit usage and results in reducing vehicle miles traveled. Senate Bill 3754 recognizes that meeting GHG reduction targets through increased transit use requires the adoption of sustainable, integrated regional transportation and community planning strategies to promote TOD.

But housing costs in the coastal communities of California near major regional economic centers and transit are too high for many families. Low-income families that cannot afford housing near their work commute ten percent further than commuters elsewhere 5 which may directly undermine the goals of recent legislation intended to address climate change. Research also links high housing costs within coastal communities, like the Bay Area, to the resegregation of the region,6 a crisis with major implications for public welfare and public health outcomes. 7 Infill development in transit accessible neighborhoods within these coastal communities must therefore occur equitably to avoid the risk of displacing low-income populations from these neighborhoods or exacerbating current cost barriers to entry for low-income populations into highly desirable neighborhoods with substantial transit accessibility or transit investment.8 The goals of reducing GHG emissions and equity are thus linked; emissions reductions cannot occur if commute times are increasing because low- and middle-income communities are pushed to farther rings of the suburbs and forced to drive to access economic centers of opportunity.

Even as California's state legislature responded in 2017 with the passage and signing of housing bills9 meant to address escalating housing costs, legislators and

4. See S.B. 375, 2007 2008 Leg., Reg. Sess. (Cal. 2008).

5. CHAS ALAMO, BRIAN UHLER & MARIANNE O'MALLEY, LEGIS. ANALYST'S OFF., CALIFORNIA'S HIGH HOUSING COSTS: CAUSES AND CONSEQUENCES (2015) ("LAO REPORT").

6. See Rising Housing Costs and Re-segregation, URB. DISPLACEMENT PROJECT (Oct. 26, 2018), https://perma.cc/8N88-F3CV.

7. For a general discussion of the relationship between racial residential segregation and health outcomes, see David R. Williams & Charles 0. Collins, Racial Residential Segregation: A Fundamental Cause of Racial Disparities in Health, 116 PUB. HEALTH REP. 404, 404 16 (2001). For an analysis on the impact of racial residential segregation on life outcomes in Oakland, California, see Matt Beyers et al., Life and Death from Unnatural Causes: Health and Social Inequity in Alameda County, ALAMEDA CTY. PUB. HEALTH DEP'T i,i 142 (2008).

8. Throughout this article we use the term "equitable infill development" to describe TOD or infill development that considers equity through affordability components or other mechanisms that would address the risk of displacement of low-income populations or exclusion of low-income populations.

9. Governor Brown Signs Comprehensive Legislative Package to Increase State's Housing Supply and Affordability, OFF. OF GOVERNOR EDMUND G. BROWN JR. (Sep. 29, 2017), https://perma.cc/6R5X-VHGD.

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 others acknowledged that more is needed to address California's housing crisis. 10 One recurring theme in the ongoing coverage and discussion of the housing crisis is an argument that state-mandated environmental review under the California Environmental Quality Act ("CEQA") is a significant contributor to the housing crisis because it adds time and money to the development process, and that given the persistent housing crisis, CEQA merits legal reform." Others advance that local land use regulations significantly constrain housing development 12 and have proposed legislation to narrow local authority over infill development near transit. 13
Existing urban planning and urban economics research correlates the overall stringency of a jurisdiction's land use regulations with high housing costs and income segregation. 14 But this research, though important, cannot answer the question of which specific elements of local land use regulation or state environmental review contribute disproportionately to either the cost of housing or the exclusion of low-income communities from these metro areas. Despite these limitations, the impact of this research and similar work has been far reaching, surfacing in statewide policy briefs 5 and political debates about proposed legislation. 16

10. Liam Dillon, Gov. Brown Just Signed 15 Housing Bills. Here's How They're Supposed to Help the Affordability Crisis, L.A. TIMES (Sep. 29, 2017), https://perma.cc /9Y9V-C2AX; Angela Hart, Jerry Brown Signs New California Affordable Housing Laws, SACRAMENTO BEE (Sep. 29, 2017), https://perma.cc/9XXU-A4Q2; Liam Dillon, The Housing Package Passed by California Lawmakers is the Biggest Thing They've Done in Years. But it Won't Lower Your Rent, L.A. TIMES (Sep. 15, 2017), https://perma.cc/4WL9- 4L6R.

11. Chang-Tai Hsieh & Enrico Moretti, How Local Housing Regulations Smother the U.S. Economy, N.Y. TIMES (Sep. 6, 2017), https://perma.cc/9DBQ-28JF; Liam Dillon, Which California Megaprojects Get Breaks from Complying with Environmental Law? Sometimes, It Depends on the Project, L.A. TIMES (Sep. 25, 2017), https://perma.cc/Y4BSFBZQ; Angela Hart, Here's Why California's Historic Housing Legislation Won't Bring Down Costs Anytime Soon, SACRAMENTO BEE (Sep. 27, 2017), https://perma.cc/P8FT8T2P.

12. See Hsieh & Moretti, supra note 11; THE WHITE HOUSE, HOUSING DEVELOPMENT TOOLKIT 2 (Sep. 2016), https://perma.cc/P4YM-LYPK.

13. See S.B. 827, 2017 2018 Leg., Reg. Sess. (Cal. 2018); Scott Wiener, My Transit Density Bill (SB 827): Answering Common Questions and Debunking Misinformation, MEDIUM (Jan. 16, 2018), https://perma.cc/GN94-NFAK.

14. Edward L. Glaeser & Joseph Gyourko, The Impact of Zoning on Housing Affordability 17 (Nat'l Bureau of Econ. Research, Working Paper No. 8835, 2002); John Quigley, Steven Raphael & Larry A. Rosenthal, Measuring Land Use Regulations and Their Effects in the Housing Market, in HOUSING MARKETS AND THE ECONOMY 282 (Lincoln Inst. of Land and Policy ed., 2009).

15. See LAO REPORT, supra note 5.

16. See Letter from Sheryll D. Cashin et al. to Mike McGuire & Jim Beall (Apr. 5, 2018), https://perma.cc/4DPJ-UCWP (letter from fair housing experts endorsing SB 827 as "a major step towards promoting integration and reducing racial residential segregation"); Letter from Amanda Eaken et al. to Scott Wiener (Mar. 23, 2018), https://perma.cc/S84A8YTX (endorsing SB-827 as "a key element in achieving California's climate goals" on behalf of the Natural Resources Defense Council, Climate Resolve, and Environment Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
Recognizing the limits of existing data sets and past research applicable to California, and the importance of the current policy debate, we began a case study of land use development within specific cities in California. We undertook this study to better understand what specific regulations of land use development in California may contribute to the state's housing crisis by increasing development approval timelines. 17 We also examined the specific impact of local and state mandated processes on all housing development, including affordable housing development, supply, and access.

This article proceeds in four parts. Part I of our article will cover the elements of land use law we identify as having the closest relationship to the ongoing policy reform debate, and then will explain the findings and limitations of existing research in relationship to current California policy reform proposals. Part II of this article provides details about our methods and research approach to respond to this gap in the research. Part III of our article presents detailed findings from our research on the first set of cities within our study. Part IV of our article places our findings within the context of other research and offers the policy implications of what we have learned so far, and the research still necessary.

Part 1: Background
We first situate our research in a legal and scholarly context by providing a brief overview of the specific provisions of state and local law that are particularly relevant to infill residential development, and then we provide an overview of the academic literature that explores how land use regulation may have impacts on housing production, housing affordability, and on equity in housing outcomes.

A. Navigating the law applicable to entitlement processes in California's
State law governs the regulatory landscape for housing construction in California in two important ways. First, state law empowers and mandates local governments to develop their own regulatory processes to control development.

California); cf. Letter from Kyle Jones to Scott Wiener (Jan. 18, 2018), https://per ma.cc/9HCE-2RS4 (opposing SB-827 on behalf of the Sierra Club California as "a heavyhanded approach.., that will ultimately lead to less transit being offered and more pollution generated"); Letter from Rich Gross & Jaqueline Waggoner to Scott Wiener (Apr. 9, 2018) (on file with authors) (opposing SB-827 on behalf of Enterprise Community Partners "unless it is amended to explicitly serve the housing needs of low-income Californians"); Letter from Brian August et al. to Scott Wiener (Mar. 20, 2018) (on file with authors) (opposing SB 827 on behalf of California Rural Legal Assistance Foundation, Housing California, and Western Center on Law & Poverty "unless it is amended to address the proposal's impact on gentrification and exclusion").

17. Approval timeframes have generally been connected to higher costs of development. See discussion infra Section I.B. 1.

18. The approval process to obtain a building permit is referred to as the entitlement process.

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 Second, state law imposes additional procedural and substantive requirements on local government regulatory processes-we discuss one of the most important of those state law components, the California Environmental Quality Act.

1. Local law governing infill development
California law permits cities to employ a range of tools to review and approve housing development based on a hierarchical system of land use law. 19 The General Plan-likened to a "constitution" for long-term physical development of the city or county2 sits at the top of "the hierarchy of local government law regulating land use" in California. 21 State law requires that each jurisdiction have a General Plan, and the General Plan must include comprehensive language that describes the city's long-range vision, policies, and objectives for development.

The General Plan codifies the city's planning law, but it may do so with varying degrees of specificity. Also, with one exception, California law does not require that jurisdictions update their General Plan according to a set schedule; the law only suggests "periodic" updates. 22
Although not required by state law, some cities may also incorporate provisions within the General Plan for Specific Plans to address anticipated growth. Particularly relevant for infill development in major cities, Specific Plans may direct development to particular locations. Specific Plans may also be extremely detailed and direct nearly every aspect of development 23 by codifying acceptable land uses 24 and requiring review of proposed development for compliance with the Specific Plan.

Next within this hierarchy are zoning ordinances. Zoning ordinances (defined generally) include maps and text that when combined provide specificity as to the type of development (type and intensity of use and form) permissible

19. We focus exclusively on components of California land use law that are specifically implicated in this research study. We do not attempt to discuss the breadth and applicability of the complex body of law that practitioners and academics describe as "land use law" within California. For relevant treatises, see CECILY BARCLAY & MATTHEW GRAY, CURTIN'S CALIFORNIA LAND USE & PLANNING LAW (Solano Press 2014); STEPHEN KoSTKA, PRACTICE UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEB 2014). For a guide intended for planning professionals that summarizes California land use law, see WILLIAM FULTON & PAUL SHIGLEY, A GUIDE TO CALIFORNIA PLANNING, (Solano Press 5th ed. 2018).

20. CAL. GOV'T CODE §§ 65300, 65302(g)(7) (2010); see also MILER & STARR CALIFORNIA REAL ESTATE DIGEST, Zoning and Planning § 10 (3d ed. 2018); see DeVita v.

Cry. of Napa, 889 P.2d 1019, 1023 25 (Cal. 1995) (citing Lesher Commc'ns, Inc. v. City of Walnut Creek, 802 P.2d 317, 321 22 (Cal. 1990)).

21. DeVita, 889 P.2d at 1023 25 (citing Neighborhood Action Grp. v. Cry. of Calaveras, 203 Cal. Rptr. 401, 406-07 (Ct. App. 1984)).

22. The General Plan is comprised of seven elements: land use, open space, noise, circulation, housing, conservation, and safety. See CAL. GOV'T CODE § 65302. The Housing Element, which details how the jurisdiction will satisfy its allocation of the regional housing need, is the only element that must be updated according to a planning schedule.

23. See KOSTKA, supra note 19, § 4.2.

24. See CAL. GOV'T CODE § 65451(a); see also Hafen v. County of Orange, 26 Cal.

Rptr. 3d 584, 591 (Ct. App. 2005).

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
within specific neighborhoods. 25 Zoning in California operates to restrict development while also incentivizing development proposed in the General Plan26 or mandating exactions. 27
State law also carves out some local government land-use authority through specific mechanisms that are directly related to housing development. 2 Notable examples include Density Bonuses 29 intended to incentivize and increase affordable housing production and an Accessory Dwelling Unit 30 law intended to increase housing production in otherwise low-density residential neighborhoods.

But how each city employs these tools is varied. In some cities, the General Plan may contain very specific language that not only guides development policy, it may also closely regulate the form of land use designations. 31 Likewise,

25. For a definition of zoning, see KOSTKA, supra note 19, § 4.1. See infra Sections II IV for a discussion of "base zoning." By "base zoning" we mean the underlying zoning district and use (residential, commercial, or industrial) provided for in the text of the ordinance and zoning map.

26. See id. § 4.

27. See generally CAL. Gov'T. CODE §§ 66000 66025; Williams Commc'ns, LLC v.

City of Riverside, 8 Cal. Rptr. 3d 96, 107 08 (Ct. App. 2003). California law broadly defines exactions as a monetary fee or dedication of land to the public that local governments require of developers as a condition of development approval. The value of the exaction cannot exceed "the estimated reasonable cost of providing the service or facility for which the fee or exaction is imposed" if it is a condition of development approval. See CAL. GOV'T. CODE § 66005(a); KOSTKA, supra note 19, §§ 18.7, 18.51. The definition of "public facilities" is also broad, encompassing "public improvements, public services and community amenities." See CAL. GOv'T. CODE § 66000(d). In short, exactions are a response to the limits on a California city's ability to generate revenue and offer a "nontax" way for local governments to get money or land from developers to support needed infrastructure and services. See KOSTKA, supra note 19, § 18.7.

28. For a list of state laws limiting local authority in zoning, see KOSTKA, supra note 19, § 4.28.

29. See CAL. Gov'T CODE §§ 65915 65918. Density bonuses are incentives to encourage developers to propose new development providing for specific types of senior housing or affordable housing; the incentive operates by allowing the developer a "density increase over the maximum allowable gross residential density" where the proposed new development provides for senior or affordable housing. See id. § 65915(f). It also operates to provide waivers from specific development standards (detailed within the local or state law often referred to as "on menu") in exchange for the developer providing specific types (and percentages) of senior housing or affordable housing.

30. Accessory Dwelling Units, otherwise known as ADUs, are "an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons" that is an accessory to an existing residential use on the parcel. See CAL. Gov'T CODE § 65852.2. State law grants local governments authority to enact local laws to permit ADUs that comply with a set of criteria (addressing form) even within zoning districts that are limited to single-family dwellings. More significantly, it imposes a requirement on local governments to provide a streamlined development process for proposed ADUs that meet specified criteria. See id. § 65852.2(a)(3).

31. The General Plan of the City of San Jose is illustrative. See e.g., City of San Jose, Envision San Jose 2040 General Plan Chapter 5 at 9, http://www.sanjoseca.gov/ DocumentCenter/View/474 (prescribing use districts, density and Floor Area Ratio (FAR) ranges, and height limits).

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 a Specific Plan may be very general in some cities-and in other instances it may closely regulate development. To complicate things even more, California treats charter cities and general law cities differently on the issue of whether the city's zoning ordinances must be consistent with the city's General Plan.3 2 This sometimes results in inconsistency between a charter city's zoning and its General Plan, or more specifically, the continued presence of outdated zoning ordinances even as the city's policy on specific types of development changes.33 State law also grants California cities substantial latitude in how they approve residential development within the framework of the relevant plans and zoning ordinances. We group the land use tools into four general categories. First, cities can allow for an objective ministerial process (or "by-right" process) when proposed development conforms to the underlying base zoning district's use and density requirements.3 4 Cities can also impose requirements for subjective discretionary review for categories of projects that are still built within the framework of the zoning ordinance-in other words, the zoning ordinance itself contemplates that at least some property owners would propose these projects, but they must meet a certain set of conditions to obtain one of these types of permits.

Examples include conditional use permits or specific plan permits.3 5 Cities also impose discretionary review when the proposed project would not comply with the

32. Zoning ordinances within general law cities must be consistent with the general plan, but these same consistency requirements do not apply to charter cities unless the city's charter requires consistency with the general plan. See CAL. Gov'T. CODE §§ 65803; 65860(d). Charter cities within California enjoy freedom to legislate at the local level over "municipal affairs" even if a conflict with State law may exist under Article XI, section 5 of the California Constitution. This directly impacts zoning in California charter cities.

Although the California Constitution does not expressly define "municipal affair," land use and zoning are consistently classified as exempt from the planning and zoning provisions of the California Government Code, unless the city's charter indicates otherwise. See City of Irvine v. Irvine Citizens Against Overdevelopment, 30 Cal. Rptr. 2d 797, 799 800 (Ct. App. 1994). But the provisions of a general plan within every city must be internally consistent.

See CAL. Gov'T. CODE §§ 65302, 65300.5.

33. The City of San Jose is illustrative. Of the forty-six rezonings in the City of San Jose, fifteen involved wholesale changes in use district for example from Light Industrial to a residential designation and many others involved more intensive escalations in residential density. Only one of these fifteen rezonings required a General Plan Amendment; only three of the remaining thirty-one rezonings required a General Plan Amendment. The fact that General Plan Amendments were not necessary shows that the General Plan permitted the desired use and intensity of the development. This suggests that the base zoning in some locations had not been updated after the most recent General Plan enactment.

34. Ministerial approvals are approvals in which a government agency simply applies law to fact without using subjective judgment. In Friends of Westwood Inc. v. City of Los Angeles, 235 Cal. Rptr. 788, 793 (Ct. App. 1987), the Court of Appeal held that "the touchstone" of the discretionary-ministerial distinction "is whether the approval process involved allows the government to shape the project in any way which could respond to any of the concerns which might be identified in an environmental impact report."

35. See e.g., S.F. MUNI. CODE § 329 (describing Large Project Authorizations for Eastern Neighborhoods Plan Area); S.F. MUNI. CODE § 303 (describing Conditional Use Authorization requirements applicable across all zones); REDWOOD CITY MUNI. CODE §

47.1-47.5 (describing Planned Community permits for areas with a Precise Plan in place).

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
applicable zoning ordinance; this includes when the developer is seeking an exemption from the zoning ordinance (variance) or asking the city to zone the project site differently (rezoning), or to change or update the General Plan to allow for the proposed project.

Finally, cities in California can also impose discretionary review even when a proposed project is consistent with the underlying base zoning district's use and development controls; in other words, cities can provide for development standards (including density and use), while also imposing aesthetic controls that may impose discretionary review that is particularly subjective in nature.3 6 Examples of this include design review, architectural review, site development review, and historical preservation review/certificate of appropriateness. . 7 Another important feature within local law relevant to infill development is the regulation of subdivision, or the process of dividing land into two or more parcels for the purpose of sale, lease, or financing.38 Subdivision can be horizontal-dividing a single parcel of land into two or more units-or verticaldividing the airspace above the land into two or more units.3 9 Also important for infill development within central cities are Development Agreements, which allow for cities to enter into agreements with developers through a local legislative act that "freezes" the applicable land use regulations (including zoning) for the property to protect the developer from any adverse impacts imposed by changes to the development standards during the development process. 40 Development Agreements are relevant to large phased development projects.

36. See BRIAN BLAESSER, DISCRETIONARY LAND USE CONTROLS: AVOIDING INVITATIONS TO ABUSE OF DISCRETION XIX, XX, 11 (6th ed. 2003) (noting that many of the discretionary provisions involve "community character" components that are highly subjective, that design codes increasingly involve subjective standards that "emphasize flexibility over precision" and that "[a]rchitectural design review ordinances provide some of the worst examples of vague statements of purpose and overbroad standards that invite abuse. Such ordinances frequently lack sufficiently clear standards and vest too much subjective decision making in the architectural review board officials.").

37. For design review-related provisions, see REDWOOD CITY MUNI. CODE § 45.2(A); PALO ALTO MUNI. CODE § 18.76.020(b)(2)(D); OAKLAND MUNI. CODE §§ 17.136.040(3) (4). For a historic preservation-related provision, see S.F. MUNI. CODE § 1006. For site development review, see SAN JOSE MUNI. CODE § 20.100.010.

38. See CAL. GOv'T CODE § 66424.

39. The California Subdivision Map Act regulates the design and improvement of subdivision; however, local governments control these design and improvements through the enactment of a local subdivision ordinance. Id. § 66411. The process begins when a developer seeking to create five or more units of land files a Tentative Map application. Id. § 66428(b). After the approval of the Tentative Map, the developer must comply with any imposed conditions before filing for Final Map approval. Id. § 66457. For the purposes of the California Environmental Quality Act (see discussion infra Section I.A.2), the Tentative Map is the discretionary trigger Final Maps are not typically discretionary actions. Id. § 66474.1. For this reason, we have tracked Tentative Map approvals, not Final Map approvals. State and local law also governs the consolidation or merger of lots into a single lot, termed a lot line adjustment. Id. § 66412(d). Certain lot line adjustments do not require tentative maps. Id. § 66412(d).

40. See CAL. GOv'T. CODE § 65867. For a general description, see KARL E. GEIER & SEAN R. MARCINIAK, MILLER AND STARR CALIFORNIA REAL ESTATE § 21:29 (4th ed. 2015).

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019

2. Environmental review under the California Environmental Quality Act
Modeled after the National Environmental Policy Act ("NEPA"), CEQA combines mandatory information disclosure with public participation to "open[] government decision-making to public scrutiny."'41 CEQA is "[o]ne of California's most cherished institutions and one of its most controversial. '42 CEQA's focus is on government projects and approvals that produce significant environmental impacts. 43
a. Local governments often determine CEQA's applicability CEQA applies to any residential development project that requires a public agency's discretionary approval.44 In the context of urban land development, the lead public agency is usually the local Planning Department 45 and with some exceptions, it is the lead agency that determines whether the required approval is discretionary or ministerial. 46 Though building permits are presumptively ministerial (or "by right"), local agencies can specify otherwise in their laws. 47 Conditional or special use permits, variances, Development Agreements, subdivision maps, or zoning changes are typically discretionary approvals 48 because Planning Departments are not legally obligated to grant these types of

41. Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 913 (2002).

42. See JOHN LANDIS, ROLF PENDALL, ROBERT OLSHANSKY & WILLAM HUANG, FIXING CEQA: OPTIONS AND OPPORTUNITIES FOR REFORMING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT 1 (Cal. Pol'y Seminar ed., 1995).

43. CAL. PUB. RES. CODE § 21002.

44. CAL. PUB. RES. CODE § 21080.

45. State law requires each city and county to have a planning agency-either an administrative body or a commission to carry out the state planning laws, which include General Plan laws discussed in this Part. See CAL. GOV'T. CODE §§ 65100, 65101. Planning agencies generally enforce the local zoning code and make land use determinations. See MILLER & STARR, 7 CAL. REAL EST. § 21:1 (4th ed., 2015).

46. See CEQA GUIDELINES § 15369 (2016) (codified at 14 C.C.R. § 15369 (2016)). "CEQA Guidelines" refers to Title 14 of the California Code of Regulations, which implement PUB. RES. CODE § 21080 et seq. See Friends of Westwood Inc., 235 Cal. Rptr. at 793 (finding building permits to be presumptively ministerial).

47. See CEQA GUIDELINES § 15268(b). San Francisco is one city that makes building permits discretionary through their charter. See discussion infra Section IV.

48. See CAL. GOV'T CODE § 65583.2 ("the phrase 'use by right' shall mean that the local government's review of the owner-occupied or multifamily residential use may not require a conditional use permit, planned unit development permit, or other discretionary local government review or approval that would constitute a 'project' for purposes of [CEQA]"). Another example is provided through the state law that requires that Development Agreements be adopted by a local legislative act, preventing them from being ministerial approvals. See supra note 33.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
approvals; instead, they use discretionary judgment to evaluate the project based on subjective criteria.49
Discretionary projects may still be exempt from CEQA. The legislature has carved out statutory exemptions in the Public Resources Code, and thirty-three categorical exemptions have been developed in the California Code of Regulations, which are more commonly referred to as the CEQA Guidelines. 50 In this article, we focus on the exemptions most relevant to infill development. For example, a lead agency can use the Class 32 infill exemption for infill development; if an urban infill project satisfies five conditions, it can bypass CEQA review. 51 Other common forms of exemptions are the Class 3 exemption for new construction or conversion of small structures and the Class 1 exemption for existing facilities. 52 Tiering is a way to streamline environmental review under CEQA by allowing environmental review of a proposed project to focus on a narrow set of issues that have not already been evaluated in a prior Environmental Impact Report ("EIR"). If all the issues have been evaluated in a previous EIR, then no further study is necessary. Tiering necessarily requires a prior environmental review document (generally an EIR) that is usually connected to a prior and large-scale planning approval; however, the source of the document can vary. A Community Plan Exemption, for example, is a tiering-based exemption available to projects consistent with a community plan, general plan, or zoning.53 Another form of tiering is the Program EIR, which can exempt future development activity from environmental review, provided that no underlying conditions have changed. 54 An EIR Addendum is commonly used for projects that will be built out in phases under a master plan and master EIR where the underlying conditions of approval have not changed. 55 If some of these conditions have changed, then the lead agency can prepare a Supplemental EIR, which only needs to contain information necessary to make the original EIR adequate.56

49. See CEQAGUIDELINES §15357.

50. Id. §§ 15300 15333.

51. Id. § 15332. These factors are: (1) the project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations; (2) the proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses; (3) the project site has no value, as habitat for endangered, rare or threatened species; (4) approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality; and (5) the site can be adequately served by all required utilities and public services.

52. See id. §§ 15303, 15301.

53. See CEQAGUIDELINES § 15183.

54. See id. § 15168.

55. See id. § 15162.

56. See id. § 15163.

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 Figure 1: Types of Environmental Review
Project gsned Tiering-Sased (Mtitigated) Negnive Environmentl Impact S Exemption ExempdoE Declaratin Report
Exerpnlons based on Exempions or redred Reduced rev ew requhe rll eview Ioc :t on1 an$ project revAew becausie thei e mentu be auS of the requwremnts characteristics CEQA review im)I~ o the prowect CEQA
153fln61t osia 113 omul~ § 2IO64Nl~geive
Ptan Exernp~ftkrs Declar;tion
.................. § 210e6 EIR
1303 $ New §13164 LIRtAddendum § 210M5I Mir~g ted
Cons 'uctlon of mll o t5168 Program EIR NlegarIve Dedlaration b. The disclosure requirements under CEQA
For projects that are not categorically exempt or exempt based on prior EJR analysis, the lead agency conducts an Initial Study57 to assess whether the project will have a significant effect on te environment. If not, the agency issues a Negative Declaration ("ND"). 58 If the project will have a significant effect on the environment, but the developer can incorporate mitigations tat reduce teir significance, ten the agency issues a Mitigated Negative Declaration ("MND").5 9 A lead agency must prepare an EIR where tere is substantial evidence tat te project will have a significant effect on te environment 60 and where it is not clear from te Initial Study that tese impacts can be mitigated below a significance treshold. 6'
An important debate in the context of CEQA implementation is over the merits of project-specific CEQA review (which focuses on individual projects) and plan- or program-level CEQA review (e.g., review focused on Specific Plans, neighborhoods, or city-wide programs). One issue is the effectiveness of projectspecific review. On the one hand, CEQA's information mandate when applied at te project level can force agencies to "identify and confront te environmental consequences of their actions" in that particular project. 62 CEQA's procedural

57. See CEQAGuLDELHNES § 15063(a).

58. Id. § 15070(a).

59. Id. § 15070(b)(2).

60. Id. § 15063(b)(1), § 15060 (indicating a project may also bypass the Initial Study to proceed directly to the EJR)

61. See CAL. PUB. RES. CODE § 21064.5; CEQA GUDELINES § 15070.

62. Karkkainen, supra note 41, at 904.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
requirements can enable cost-effective mitigation, because agencies can take into account "the site-specific circumstances" of the project "in a flexible manner" and propose feasible mitigations in a way that applying blanket regulations would not.63 CEQA also operates to mitigate project-specific environmental problems where there are lapses in regulation because its procedural framework is sufficiently flexible to mitigate environmental problems that other, more general laws are slower to address. 64 A project-specific EIR, however, cannot inform a long-term perspective or mitigate the regional and cumulative effects of development that are better suited to the general plan process.
65 The other issue relates to cost. As noted above, plan or program-level EIRs can generally reduce the costs of subsequent CEQA review through tiering:
prior research has found the differences between a Categorical Exemption, MND, and EIR, in time and cost, can be great. 66 Therefore, tiering that allows projectlevel review to occur at the MND or Categorical Exemption level can reduce project-level costs substantially. However, cities generally pay the costs of planor program-level CEQA review, while developers pay for the costs of projectspecific CEQA related documents and studies. 67 For cash-strapped jurisdictions, particularly in the wake of Proposition 13, which reduces the amount of property taxes that stay within local jurisdictions, 68 the project-specific EIR presents a more economically feasible way of considering environmental effects than an update to

63. ELISA BARBOUR & MICHAEL TEITZ, CEQA REFORM: ISSUES AND OPTIONS 4 (Pub.

Pol'y Inst. of Cal. ed., 2005) (emphasis omitted).

64. See id. for a further discussion of how CEQA fills these regulatory gaps; Giulia Gualco-Nelson, Reversing Course in California: Moving CEQA Forward, 44 ECoL. L. Q. 155, 164 (2017).

65. See Robert Olshansky, The California Environmental Quality Act and Local Planning, 62 J. AM. PLAN. ASS'N. 313, 317 (1996). EIRs are very effective tools to analyze project-specific impacts but many environmental effects are cumulative in that they are not traceable to a single project. Traffic, for example, is a regional issue stemming from historic patterns of land use and disinvestment in public transportation. Unfortunately, instead of promoting long-term planning, CEQA often "burden[s] a single project with all of a region's problems" a nearly impossible undertaking. Id.

66. See Kenneth Bley, Beware of Planners Bearing Gifts, Cox CASTLE NICHOLSON (Jan. 20, 2015), https://perma.cc/HD4K-MDNH (noting that "[p]reparing an MND... also requires significant time and money, although, in the short run, less than an EIR).

Substantively, EIRs must contain more detail and studies than an MND. EIRs require (1) detailed information about the proposed project's significant effects on the environment; (2) ways in which the significant effects of such a project might be minimized; and (3) alternatives to the project. See CAL. PUB. RES. CODE § 21061. However, in long the run, as Bley notes, if there are legal challenges, MNDs might end up costing more because they are potentially less defensible in court. See Bley, supra note 66 (discussing the standards of review for an MND and EIR).

67. See Olshansky, supra note 65, at 319-20.

68. Passed as a voter initiative in 1978, Proposition 13 is an amendment to the California Constitution that froze property tax values at 1976 assessed value levels and fixed tax increases at a maximum of two percent per annum. CAL. CONST. art. XIIIA, §§ l(a), 2(a). This has led to a sharp decline in the revenue local governments receive from property tax revenue. See LEGISLATIVE ANALYST'S OFFICE, COMMON CLAIMS ABOUT PROPOSITION 13 at 2 (2016).

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 the General Plan because it effectively shifts the costs of CEQA compliance to individual developers. 69 The cost of a project-specific EIR, for example, is significantly lower than the cost of a General Plan update (typically financed from the city's general fund), and the project applicant bears most of the cost.70 Critics have also attacked the way agencies unpredictably apply CEQA both within the same jurisdiction and across the state, an inconsistency that critics say increases not only the time and money spent on CEQA review, but also the risk of litigation.71 And some critics question whether or not CEQA actually leads to meaningful mitigation of harm. 72 Because CEQA leaves implementation entirely to local control, agencies can weigh environmental harms and social or economic benefits differently. 73
c. The public participation requirements of CEQA
Public participation is the democratic cornerstone of CEQA. CEQA has strict notice provisions that enable the public to participate in every major phase of environmental review. The notice requirements are demanding for an EIR.

Immediately after determining that an EIR is necessary, the lead agency must issue a Notice of Preparation. 74 After posting this notice, the agency begins work on the Draft EIR. The agency must then notice and post the Draft EIR for public review for at least thirty days. 75 During this period, the public submits comments about the agency's findings. The lead agency must review and prepare a written response to all comments received during this period.76 The agency incorporates these responses into the Final EIR and then recirculates it to the public. 77 Within five days of certifying the Final EIR, the agency will file a public Notice of Determination ("NOD") with the county clerk. 78
The Office of Natural Resources promulgates CEQA guidelines for implementation, but no state agency substantively oversees CEQA. 79 Citizen suits are the sole enforcement mechanism to ensure a lead agency's compliance. NODs trigger the statute of limitations to bring suit,80 and CEQA lawsuits are easy to file.

Filing fees are relatively inexpensive, and courts limit proceedings to the administrative record, which obviates the need for a lengthy discovery process.8 '

69. See Olshansky, supra note 65, at 320.

70. Id. at 319 20. In 1996, the average cost of an EIR was $38,214. The average cost of a General Plan was $208,000.

71. See BARBOUR & TEITZ, supra note 63, at 15.

72. Id. at 25.

73. Id.

74. CEQA GUIDELINES § 15082.

75. Id. § 15105.

76. Id. § 15088.

77. Id. §§ 15088, 15132.

78. Id. § 21152(a).

79. CAL. PUB. RES. CODE § 21083.

80. Id. at § 21167.

81. See KOSTKA, supra note 19, § 23.48 (discussing admissibility of extra-record evidence).

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
CEQA also allows plaintiffs to easily satisfy standing requirements. 82 The ease of CEQA litigation has been a source of significant criticism of the statute, with critics arguing that it increases uncertainty and costs for developers. 83 B. What prior research has told us about the impact of
California's land use regulations on housing supply and spatial equality
Meeting California's statewide goals to reduce GHG emissions requires equitable infill development. Housing development properly focused in infill TOD areas may significantly reduce emissions in part by increasing transit usage 84 and reducing vehicle miles traveled. 85 The state legislature has recognized that meeting GHG reduction targets through increased transit use requires the adoption of sustainable, integrated regional transportation and community planning strategies. 86 Research suggests, however, that law promoting sustainable urban development without an equity focus may lead to "environmental gentrification" 87 and may directly undermine intended policy goals of reducing GHG emissions. 88

82. In Save the Plastic Bag Coalition v. City of Manhattan Beach, the California Supreme Court refused to apply the federal "zone of interests" test for CEQA litigation. 254 P.3d 1005, 1012 13 (Cal. 2011). Limiting standing under CEQA has been proposed as a way to reduce the proliferation of CEQA litigation. See Eric Biber, Could Standing Save CEQA? LEGAL PLANET (Apr. 9, 2012), https://perma.cc/7CHE-HKR3.

83. See BARBOUR & TEITZ, supra note 63, at iii.

84. NATHANIEL DECKER, CAROL GALANTE, KAREN CHAPPLE & AMY MARTIN, RIGHT TYPE, RIGHT PLACE: ASSESSING THE ENVIRONMENTAL AND ECONOMIC IMPACTS OF INFILL RESIDENTIAL DEVELOPMENT THROUGH 2030 11 12 (Next 10 ed., 2017).

85. Arefeh Nasri & Lei Zhang, The Analysis of Transit-Oriented Development (TOD) in Washington, DC and Baltimore Metropolitan Areas, 32 TRANSPORT POL'Y 172, 179 (2014).

86. CAL. GOv'T CODE § 65400.

87. See, e.g., MALO HUTSON, THE URBAN STRUGGLE FOR ECONOMIC, ENVIRONMENTAL AND SOCIAL JUSTICE: DEEPENING THEIR ROOTS 20 (Routledge ed., 2016) (citing Melissa Checker, Wiped Out by the "Greenwave": Environmental Gentrification and the Paradoxical Politics of Urban Sustainability, 23 CITY & SOC'Y 210, 210 (2011) ("While it appears as politically-neutral, consensus-based planning that is both ecologically and socially sensitive, in practice, environmental gentrification subordinates equity to profitminded development")); Hamil Pearsall, Moving out or Moving in? Resilience to Environmental Gentrification, 17 Loc. ENV'T 1013, 1013 (2012) ("Sustainability initiatives and environmental improvements that lack adequate attention to the social justice dimension of environmental change produce environmental gentrification").

88. Notably, the characteristics of ridership also suggest that if low-income communities that have historically lived in central city neighborhoods and used transit at the highest rates are displaced from central cities, TOD investment may not achieve its intended policy goals. See Robert Cervero, Transit-Oriented Development's Ridership Bonus: A Product of Self-Selection and Public Policies, 39 ENV'T & PLAN. 2068, 2083 84 (2007). The decline of transit ridership in Los Angeles, despite new investments in public transportation and upzoning around these stations, is an acute example of this issue. See MICHAEL MANVILLE ET AL., FALLING TRANSIT RIDERSHIP: CALIFORNIA AND SOUTHERN CALIFORNIA (S. Cal. Ass'n of Gov'ts ed., 2018). Also, the LAO reported that low-income Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 Multiple studies examine the relationship between land use regulation and its specific impacts on housing supply and housing costs as well as its impacts on spatial equality. We thus discuss and summarize the findings and methods of two research areas: (1) studies that explore the relationship of land use regulation on housing supply and costs (indirect or direct impact on housing costs), and (2) studies that explore the relationship of land use regulation on spatial equality (indirect or direct impact on segregation/exclusion).8 9 Our summary identifies the key conclusions of that literature, and how the current methodological approaches of that literature limit the ability to either generalize from the study findings or identify specific policy solutions.

1. Understanding land use regulation as a constraint on supply California's home prices and rents are higher than anywhere else in the country; home prices are 2.5 times the national average and rents are fifty percent higher.90 Using basic supply and demand economics, urban economists posit that a sharp decline in supply beginning in the 1970s has led to the affordability crises in many of the nation's coastal cities, like those in California, where the labor market is strong and demand for housing is high.91 Building on the work of William Fischel-who coined the term "homevoter hypothesis" to describe a home owner's families that work within coastal communities, but cannot afford housing near their work, commute ten percent farther than commuters elsewhere and concluded that high housing costs that result in longer commutes risk undermining the goals of recent legislation intended to address climate change. See LAO REPORT, supra note 5, at 3.

89. We focus here only on research that directly touches on the debates over housing costs and regulation in California. The relevant literature that engages with the impact of land use regulation (defined broadly to encompass both local land use regulations and state law) on both housing costs and spatial equality is large. For a comprehensive literature review that focuses on an econometric analysis of land use regulation see generally, Joseph Gyourko & Raven Molloy, Regulation and Housing Supply (Nat'l Bureau of Econ. Research Working Paper No. 20536, 2014). For a summary of studies and writing on how stringency within land use regulation impacts supply, see Vicki Been, City NIMBYs, 33 J. LAND USE & ENVTL. L. 217, 223 n.24 (2018). For a review of the literature that engages public investment (related to land use) and gentrification and displacement, see Miriam Zuk et. al, Gentrification, Displacement and the Role of Public Investment: A Literature Review, URBAN DISPLACEMENT (Mar. 3, 2015), https://perma.cc/QER4-XC2H.

90. See LAO REPORT, supra note 5, at 3.

91. See LAO REPORT, supra note 5, at 7 ("Beginning in about 1970, however, home prices throughout the state began to accelerate. Prices were eighty percent above U.S. levels by 1980, and by 2010, the typical California home was twice as expensive as the typical U.S. home"); see also Edward L. Glaeser, Joseph Gyourko & Raven Saks, Why is Manhattan So Expensive? Regulation and the Rise in Housing Prices, 48 J. L. & ECON. 331, 337 (2005) (beginning in the 1970s, the U.S. experienced a sharp decline in the supply of housing nationwide). Other studies have found a sharp decline in building permits beginning in the 1990s. See CAL. DEPT. HOUSING & CMTY. DEV., CALIFORNIA'S HOUSING FUTURE:

CHALLENGES AND OPPORTUNITIES 6 (2018).

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
inherent motivation to maximize the value of their property92 much urban economics research attributes the change in housing production to the rise of "historical preservationists in New York City [and] conservationists in California .... -93 In this literature, supply constraints are the primary cost of land use regulation. These studies reach this result by measuring the gap between the physical costs of producing the housing unit and the sales price for the housing unit.94 If the gap between production costs and sales price is narrow, the market is efficient and affordable; where the gap between sale price and production costs is wider, housing is unaffordable. Large disparities between price and production cost are generally understood as indirect evidence of the costs of land use regulation. 95 Because of the difficulty of measuring the impact of particular land use policies, 96 urban economists use proxies such as declining permitting levels, declining heights and densities, and increasing sale prices, which together provide indirect evidence for a "regulatory tax." 97
In 2002 Glaeser and Gyourko found that generally home sale prices are within forty percent of hard construction costs nationwide, but California's housing prices were substantially higher than construction costs. 98 They concluded the gap between hard costs and sale price is not a function of higher land costs, 99 and found that stringent land use regulation which imposes longer than average'00 lag times between permit application and approval creates an "implicit zoning tax."'' 1 However, for our purposes a key limitation of this research is that it is unable to isolate which land use regulations might impose the lag time in development. 10 2

92. WLLiAM A. FiSCHEL, THE HOMEVOTER HYPOTHESiS 5 (Harvard Univ. Press ed., 2001); William A. Fischel, A Property Rights Approach to Municipal Zoning, 54 LAND ECON. 64, 68 (1978).

93. Edward L. Glaeser & Joseph Gyourko, The Economic Implications of Housing Supply 3 (Zell/Lurie, Working Paper No. 802, 2017).

94. See id. at 5; Glaeser, Gyourko & Saks, supra note 91, at 336.

95. Glaeser, Gyourko & Saks, supra note 91, at 336.

96. Id. at 333.

97. Id. at 335.

98. Glaeser & Gyourko, supra note 14, at 21.

99. Id. at 17. Because the cost of a house on a 10,000 square foot lot versus an identical house on a 15,000 square foot lot is close in value, if high land values were a real driver of cost, the house on the larger lot would be worth more. But high prices were not associated with higher densities. A classic free market land model would suggest that densities would increase as land becomes more expensive due to an exogenous scarcity, but in California the researchers found that high cost areas were associated with lower not higher densities. One notable caveat to this study is that the authors only use data from singlefamily home sales and exclude all multifamily, cooperative or condominium sales. Thus, their approximation of "density" will likely skew lower. More expensive, but comparatively less dense, housing presents indirect evidence of stringent land use regulation 100. Defined as six months based on the underlying survey. Id. at 19 20. 101. See Glaeser & Gyourko, supra note 14, at 17. Glaeser & Gyourko derive this data from the 1989 Wharton Land Use Control Survey, a precursor to the Wharton Residential Land Use Regulatory Index ("WRLURI"). See discussion infra Section I.B.1(a). 102. These studies also employ national averages to describe very local issues. For example, some studies use RS Means Construction data for hard construction costs, which Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 a. Exploring stringency and constraints on housing supply through national surveys
In an effort to understand how regulations might shape housing costs, in the 2000's two groups of researchers completed two national surveys that both contributed to the analysis of the financial cost of land use regulation and produced reflects national averages of construction costs per square foot rather than actual costs. To adjust these national averages for certain metro regions, RS Means inflates them by a set percentage. This inflation, however, does not consider higher than average labor cost or equipment costs in a particular location. Building in expensive metro areas is spatially constrained and requires higher costs for staging, storage, and transportation. See About RSMeans Data, RSMEANS DATA (Oct. 23, 2018, 4:00 PM), https://perma.cc/A37F-2ANS.

Labor markets also tend to be stronger in high cost areas, which increases construction costs.

According to the California Legislative Analyst's 2015 report, these factors heavily influence the cost of housing construction in California. See LAO REPORT, supra note 5, at

14. Also, a recent McKinsey study suggests that low construction productivity is a major driver of construction costs and time delays. FULiPE BARBOSA ET AL., REINVENTING CONSTRUCTION: A ROUTE TO HIGHER PRODUCTIVITY 2 3 (McKinsey Global Inst. ed., 2017). (noting that in its sample "over the past ten years less than one-quarter of construction firms have matched the productivity growth achieved in the overall economies in which they work, and there is a long tail of usually smaller players with very poor productivity. Many construction projects suffer from overruns in cost and time.").

In addition, while the studies assume efficient market conditions, in reality, home sale prices include all the transaction costs that the developer needs to recoup, such as the cost of financing (carrying capital, lender origination fees, issuance fees, insurance), investor ROI (which is typically higher in high cost metro areas), legal fees, taxes, and developer and contractor profit. See, e.g., Memorandum from Keyser Marston Assoc., to Pleasant Hill BART Station Leasing Auth., (Nov. 12, 2014) http://www.co.contra-costa. ca.us/DocumentCenter/View/34410/Condominium-Feasibility-Study (describing a developer's pro forma feasibility analysis for condominiums adjacent to the Pleasant Hill BART station: "The output of the pro forma is the average condo sale price required for project feasibility. The pro forma estimates the costs to build the project including land acquisition, direct construction costs, and indirect and financing costs." These costs must be recouped for the project to be feasible.)
Though land use regulation can certainly increase these costs by prolonging the approvals process, many of these costs exist independent of land use regulation.

In 2005, Glaeser, Gyourko, and Saks made a better case for the regulatory tax formula as applied to the housing market in Manhattan. In Manhattan, where most people live in dense multifamily structures, the cost of adding an additional floor of units is the marginal cost of building up rather than the cost of purchasing additional land. This implies that choosing to add an additional floor would be a function of regulatory approvals rather than the availability of land. The study found that buildings today are on average shorter than they were from the beginning of the century to the 1970s. Moreover, the ratio of sales price to construction costs fluctuated between 1.5 and 1.7 throughout the 1980s and 1990s.

This suggests that regulation prevents developers from maximizing density, which would tie the sale price to construction cost. The authors also suggest that the regulatory tax is not solely a product of laws on the books, but rather how these laws are applied and supplemented their data with case studies of wealthy New York constituents that organized to block a 17-story apartment building on the Upper East Side. Though the underlying zoning actually permitted the 17-story height, the wealthy neighborhood constituents used landmark preservation law to reduce the building height to nine stories. See Glaeser, Gyourko & Saks, supra note 91, at 334.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
important datasets that other researchers would rely on.'0 3 In 2006 Pendall, Puentes, and Martin published the results of their survey of land use in 1,844 jurisdictions from the fifty largest metropolitan areas. The survey asked planning staff about their perceptions of the jurisdiction's use of zoning, comprehensive planning, growth containment measures, impact fees, building permit caps, or affordable housing incentives, and for perceptions of regulation (more or less) from the 1970s to 1990s. 10 4 The team then coded these results to create "regulatory clusters" (groups of jurisdictions with similar land use typologies) on a spectrumtraditional (typically the most exclusionary), reform, and deregulated jurisdictions. 10 5 To gauge the level of exclusionary land use regulation, the survey asked whether a jurisdiction would allow construction by right or by special permit of a forty-unit two-story apartment building sitting on five acres. 10 6
In terms of permissive zoning, the most exclusionary jurisdictions were in the Northeast, whereas San Francisco, San Diego, Seattle, and other western metro areas were the least exclusionary. 10 7 At that time, nearly two-thirds of the Western metro regions surveyed had affordable housing incentive programs and nearly half had dedicated affordable housing funds.' 08 Although zoning in Western metro regions might have been the most permissive in terms of density and variety of housing stock (in some cases even rivaling New York), these western jurisdictions used other regulatory tools-like urban growth containment measures, impact fees, and permit caps-that made it more expensive and difficult to develop housing. 10 9
Pendall's 2006 study does not explain how affordable housing incentives can modify an underlying exclusionary land use system (for example, by exempting affordable housing from certain impact fees), but the study results suggest that some metro regions, though ostensibly committed to constructing affordable housing, are actually employing regulatory tools that decrease supply, or that there could be a mismatch between means and ends. Housing prices were highest in "reform" jurisdictions that have permissive underlying zoning but employ a variety of land use tools that include growth control (e.g., San Francisco and Denver). 110 And housing costs in these areas are higher than in the North East where traditional exclusionary zoning is employed."'
103. See, e.g., Rothwell & Massey infra FN 196.
104. Rolf Pendall, Robert Puentes & Jonathan Martin, From Traditional to Reformed: A Review of the Land Use Regulations in the Nation's 50 Largest Metropolitan Areas, THE BROOKINGS INSTITUTION 7 8 (2006), https://perma.cc/3CKU-PZAK. The survey tool is also available at https://perma.cc/VG98-SWAM.
105. Id. at 19.
106. Id. at 7.
107. Id. at 13.
108. Since the time of the Pendall study, California has dissolved its Redevelopment Agencies a primary source of affordable housing funding, which has negatively impacted many of these funds. See discussion infra Section III.
109. See id. at 14 (containment), 17 (impact fees), 19 (permit caps). 110. Id.at3l.
111. Id. at 30. Unsurprisingly Houston and Dallas-San Antonio, which the study considered nearly unregulated with the exception of impact fees, had the lowest housing Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 The Pendall study does not examine whether the jurisdiction requires environmental review, which in California impacts the type of housing that can be built regardless of the underlying zoning controls. Because of the national scope, the study also did not focus on how land use regulations are applied. For example, Pendall notes that San Francisco has permit caps, but fails to note that they apply only to certain commercial developments and not residential or mixed-use properties. 112 These issues are likely applicable to other jurisdictions as well.

At around the same time as the Pendall survey, Gyourko, Saiz, and Summers conducted another major national survey of land use practices to build the Wharton Residential Land Use Regulatory Index ("WRLURI") with the aim of determining the "average" degree of land use regulation in the nation by focusing on process and outcomes, rather than just the presence of regulatory constraints. 1 3 The WRULRI distributed a fifteen-question survey to planning officials in 2,649 jurisdictions.1 4 Participants ranked their perception of the importance of certain factors that influence local government decisions on how to regulate the rate of residential development on a 1-5 scale. 115 They also ranked the involvement of certain organizations-including local councils, communities, state legislature, and local courts-in the land use regulation process. The survey asked respondents to (a) identify how much the cost of land development has increased in the last ten years as well as the average length of the entitlement process as compared to ten years ago; (b) provide the number of board and commission approvals required to approve projects with zoning changes versus projects without zoning changes; (c) identify whether the community has permit caps, minimum lot size requirements, and open space or affordable housing or infrastructure exactions; and (d) identify the number of applications for zoning changes filed and approved in the last year.

To assess each state legislature's involvement in the planning process and the involvement of the state courts, Gyourko, Saiz, and Summers used Foster and Summers's fifty state survey 1 6 that determined the features typical of judicial prices. While Pendall 2006 notes that housing prices were once low in Austin, the study notes that the growth of the high-tech sector has increased housing costs above Houston and San Antonio. Housing prices aside, reform jurisdictions and Texas had more in common in terms of social demographics. Both have higher concentration of college graduates in their central city than in their suburbs. Low-income people and people of color were dispersed more evenly throughout the suburbs in reform areas and Texas, whereas they are primarily concentrated in the central city in traditional jurisdictions. 112. See, e.g., S.F. Planning Dep't, Office Development Annual Limitation Program, (Oct. 23, 2018, 4:00 PM), https://perma.cc/DN94-CDKW. In 1985, San Francisco enacted the Annual Office Limit Program which caps the annual permitting of office space on a square foot basis; this square footage limitation does not apply to residential housing. 113. Joseph Gyourko, Albert Saiz & Anita Summers, A New Measure of the Local Regulatory Environment for Housing Markets: The Wharton Residential Land Use Regulatory Index, 45 URB. STUD. 693, 694 (2008).
114. Id. at 696.
115. Id. at 719 21. Some of these factors included supply of land, cost of new infrastructure, density restrictions, impact fees, opposition to growth, and school crowding. 116. See DAVID FOSTER & ANITA SUMMERS, CURRENT STATE LEGISLATIVE AND JUDICIAL PROFILES ON LAND-USE REGULATIONS IN THE US 3 8 (2007) (surveying land use laws such as legal standards for exactions in all 50 states).

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
review for exactions, fair share development requirements, building moratoria, and spot zoning. 117 They also used data on ballot box planning measures from a database that tracks initiatives nationwide." 8 The authors then created an index of eleven land use stringency indicators: local political pressure, state political involvement, state court involvement, local zoning approval (includes environmental review), local project approval, local assembly (democracy), supply restrictions, density restrictions, open space, exactions, and approval delay. 119 The WRLURI's stringency index provided policymakers a general assessment and comparative analysis of whether ajurisdiction's land use system is more or less "stringent" and whether it imposes more lag time to approvals. In the least regulated community nationally, density restrictions were relatively permissive, open space requirements were unlikely to be imposed, and the lag time between application and issuance of a building permit was approximately three months. 120 The average community required two levels of approvals to grant a zoning change and at least one approval for a project without a zoning change, but did not put project approvals to a popular vote by the community, and minimum lot sizes, open space, and exactions were not onerous. 121 The typical lag between application and permit issuance was six months. 122 The most stringently regulated communities required a local popular vote to approve a project and one more level of approval for a project even without a zoning change; density restrictions and high minimum lot sizes were also more prevalent. 1
23 The average approval timeline
in stringently regulated communities was 10.5 months.'l4 Stringently regulated communities tended to have high stringency values for all the land use indicators. 125 Stringency was also strongly correlated with community wealth. 126 Interestingly, regulations were highly variable even within the same state, highlighting the ubiquity of local rather than state control.127 117. Gyourko, Saiz & Summers, supra note 113, at 701. See also FOSTER & SUMMERS, supra note 116, at 3. The Foster and Summers 50 state survey ranked states on a scale of I to 3: states that scored a 1 gave little deference to local municipalities; states that scored a 3 nearly always defer to the municipality. The number of cases consulted per state ranges from one in Alaska to a high of fifteen in California. Foster & Summers also used information on new legislative enactments and governor's actions to rank the state legislative involvement on the same scale.
118. Gyourko, Saiz & Summers, supra note 113, at 698 (citing TRUST FOR THE PUBLIC LAND, LANDVOTE DATABASE, https://tpl.quickbase.com/dbbbqna2qct?a =dbpage& pagelD=10 (last visited Oct. 24, 2018)).
119. Gyourko, Saiz & Summers, supra note 113, at 698 701. 120. Gyourko, Saiz & Summers, supra note 113, at 709, 714. 121. Id. at 707.
122. Id. at 708.
123. Id. at 708.
124. Id. at 710.
125. Gyourko, Saiz & Summers, supra note 113, at 710.
126. Id. at 710.
127. Id. at 712 ("For example, in Massachusetts which has a state average that is 1.56 standard deviations above the national mean, 10 per cent of the communities (8 out of 79) still have WRLURI values below zero and thus are more lightly regulated than the average place in the country").

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 In 2018, the WRLURI continues to remain highly influential. The finding that stringency is associated with higher housing costs is particularly important because it drives much of the policy debate around land use in California. 128 The index also has been used in subsequent studies 129 and informs survey design for related research. 1
30 For instance, many researchers have used the WRLURI to examine relationships between housing supply and other variables. In 2010, Saiz used the WRLURI and satellite data to establish that the most geographically constrained jurisdictions-meaning the jurisdictions with the least available land to develop' 3'-also had the highest stringency values on the WRLURI. 132 Saiz found that regions with the most inelastic supply are also the most geographically constrained in terms of mountainous topography and internal water (e.g., flood plains, wetlands). 133 Areas with the most geographic constraints also had the highest stringency values on the WRLURI. 134 Housing and population growth were also predictive of more stringent regulation. 135 Though this does not establish causality, Saiz's results evoke the homevoter hypothesis, suggesting that people who invest in expensive high growth areas want more regulation to retain value in their investment. 1
36 128. In an effort to drive down housing costs, the California legislature has aimed to reduce the number of local regulations for certain types of residential developments. SB 35 requires local jurisdictions not in compliance with RHNA obligations to approve certain residential developments containing ten to fifty percent affordable housing through a ministerial process. S.B. 35, 2017 2018 Reg., Leg. Sess. (Cal. 2017). SB 827 which would have created a by-right process to approve residential developments exceeding underlying height limitations in transit zones failed last year; however, the bill will likely be resurrected in some form during the next legislative cycle. See Alissa Walker, Sen. Scott Wiener Will Introduce New Version of Transit Density Bill, CURBED LA (Oct. 9, 2018), https://perma.cc/R5KK-S4HP.
129. See e.g., Michael C. Lens & Paavo Monkkonen, Do Strict Land Use Regulations Make Metropolitan Areas More Segregated by Income? 82 J. AM. PLAN. ASS'N 11 (2016) (using the WRLURI to analyze levels of spatial segregation); Albert Saiz, The Geographic Determinants of Housing Supply, 125 Q. J. ECON. 1253 (2010) (using the WRLURI to analyze geographic constraints and housing supply restrictions); Matthew A. Turner, Andrew Haughwout & Wilber van der Klaauw, Land Use Regulation and Welfare, 82 ECONOMETRICA 1341 (2014) (using the WRLURI to gauge supply constraints). 130. See e.g., QUIGLEY, RAPHAEL & ROSENTHAL, supra note 14, at 280; Kristoffer Jackson, Regulation, Land Constraints, and California's Boom and Bust, 68 REGIONAL SC. & URB. ECON. 130 (2018); Terner Center, Terner Residential Land Use Survey (on file with the author).
131. To determine what land is unavailable, Saiz used satellite data to calculate areas lost due to water and mountains (any slope above fifteen percent). Saiz, supra note 129, at 1254.
132. Id. at 1282.
133. Id. at 1253.
134. Id. at 1261.
135. Id. at 1282.
136. Albert Saiz, The Geographic Determinants of Housing Supply, 125 Q. J. ECON. 1253 (2010), at 1255.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
A few key limitations of the WRLUI study make reliance on that study problematic. First, the authors assign stringency variables to metropolitan statistical areas ("MSAs"). 137 This index tells us that San Francisco was more highly regulated than the national average. 138 But the stringency level for San Francisco, for example, is composed of thirteen observations drawn from five counties. The stringency value might not necessarily characterize the regulatory process across those five counties. Second, the WRLURI only focuses on the approval process in theory. This approach is ill-suited to understanding and distinguishing drivers of delays that could be related to local variations in planning practice rather than what the law mandates. Third, the WRLURI identifies stringency at a single point in time in 2005. Using the data (or findings) to describe current conditions risks ignoring changes in the regulatory process that occurred after the point in time of the survey or data collection. 139 Fourth, the sub-index values derive from inherently subjective survey questions submitted to only one planning official per jurisdiction; the bias or perspective of a single person could substantially skew the stringency measurement. 140 Finally, although areas with the most stringent regulation have the highest housing costs, all regulations might not impact that cost in the same way.
b. Exploring stringency and constraints on housing supply through a statewide or regional survey
National surveys provide a big picture of the regulatory environment across the country, but regional and statewide surveys may more effectively identify the regulatory determinants of housing inelasticity, 141 and are necessary to understand how land use affects housing supply given the local and heterogeneous nature of land use regulation. 1
42 Local metropolitan surveys require more resources
than a national survey, and "the enormity of [this] effort prevents it from being easily replicated in many ... markets."'143 California has benefited from at least five regional and state-specific studies. 1
44 137. Gyourko, Saiz & Summers, supra note 113, at 713. 138. Id. at 714 (finding that the least regulated jurisdictions were located within the Midwest, whereas the most regulated jurisdictions were in the coastal metro areas, with the most stringent land use systems located in the North East). 139. See Been, supra note 89, at 227 for a similar argument. 140. The potential for these types of biases is further explained in the context of CEQA in LANDIS, PENDALL, OLSHANKSY & HUANG, supra note 42, at 116. The authors note that planners' "livelihoods depend in no small part on administering [CEQA]." 141. Glaeser & Ward 2008, for example, used a highly resource-intensive method that enabled them to disaggregate minimum lot sizes, wetlands, and infrastructure regulation as the major determinants of permitting and costs in the Boston metro area. Edward L.

Glaeser & Bryce Ward, The Causes and Consequences of Land Use Regulation: Evidence from Greater Boston, 65 J. OF URB. ECON. 265 (2008).
142. GYOURKO & MOLLOY, supra note 89, at 13.
143. Id.
144. We omit discussion of several earlier California focused surveys conducted in 1989 (MADELYN GLICKFELD AND NED LEVINE, REGIONAL GROWTH AND LOCAL REACTION:

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 Quigley, Raphael & Rosenthal 2009 used a method similar to WRLURI to create a regulatory stringency index for the San Francisco Bay Area. The authors surveyed building officials in eighty-six jurisdictions in 2007, and then supplemented their data with surveys of land use officials conducted between 1992-1999.145 The 2007 survey addressed a variety of factors that affect housing development, including duration, timing, specific regulations, political influence, project approval procedures, delays, inclusionary zoning, and open space. 146
Building officials provided information on the number of approvals required for certain types of projects and the presence of certain types of regulation connected to restricted growth. 147 They also conducted online surveys of professional builders and environmental consultants, who provided self-reported data on a total of 37 single-family (121 units) and 25 mixed-use developments (331 units) in 33 land use jurisdictions. 148 These questions asked about "perceived level of controversy" associated with certain project types, "regulatory reasonableness," "transparency," and "estimates [of] the 'all-inclusive cost of the entire entitlement process."'1 49 Indexing the results of both surveys, the authors created the Berkeley Land Use Regulation Index ("BLURI").150
The BLURI does not necessarily contradict the findings of the WRLURI, but highlights that local context is important when assessing land use regulation in California. The BLURI indicated that the average approval lag between application and permit was 2 years for a multifamily development and 2.5 years for a singlefamily home development. 151 Within this time frame, environmental approvals took 2.3 years for single-family homes and 1.9 years for multifamily. 152 Other findings from the BLURI closely track the WRLURI. The numbers of approvals required to build a unit of housing closely correlated with high housing costs. 153 Regulatory stringency was consistently associated with higher costs for construction, longer delays in completing projects, and greater uncertainty about the elapsed time to completion of residential developments. 154 Political

THE ENACTMENT AND EFFECTS OF LOCAL GROWTH CONTROL AND MANAGEMENT MEASURES IN CALIFORNIA (Cambridge, MA: Lincoln Institute of Land Policy ed., 1992)) and 1992 (Ned Levine, Madelyn Glickfeld & William Fulton, Home Rule: Local Growth Control. Regional Consequences, (Report to the Metro. Water Dist. of S. Cal. & the S. Cal. Ass'n of Gov'ts 1996) (unpublished)).
145. John Quigley, Steven Raphael & Larry A. Rosenthal, Measuring Land Use Regulations and Their Effects in the Housing Market, HOUSING MARKETS AND THE ECONOMY 272, 280 (Lincoln Institute of Land and Policy ed., 2009). For the 1992 1999 surveys, see Glickfield & Levine, supra note 13; Ned Levine, The effects of local growth controls on regional housing production and population redistribution in California, 36 URB. STUD. 2047 (1999).
146. Quigley, Raphael & Rosenthal, supra note 14, at 280. 147. Id. at 282 85.
148. Quigley, Raphael & Rosenthal, supra note 14, at 287 289. 149. Id. at 288 89.
150. Id. at 289.
151. Id. at 292.
152. Id. at 292 93.
153. Quigley, Raphael & Rosenthal, supra note 14, at 295. 154. Id. at 297.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
influence was another important factor, with jurisdictions in Marin County, the City of Richmond, and the consolidated City and County of San Francisco reporting the strongest political influence. 155 Berkeley and mixed-income cities like San Jose and Vallejo ranked in the middle in terms of political influence. 156 Another more recent California-focused survey includes the California Land Use Regulatory Index ("CaLURI"). The CaLURI provides better insight into the geographic variability of land use stringency across California. Jackson sent surveys to planning staff in 540 cities and counties, and 420 jurisdictions responded. 157 The survey asked questions about the land use process and policies, including specific residential development standards like bulk, height, setback requirements, and floor area ratio restrictions. 15 The survey also asked whether the jurisdiction permitted low-cost housing alternatives, like mobile homes, as well as whether the jurisdiction restricts growth through its General Plan. 159 Other questions asked about affordable housing requirements, average approval times, permit caps, and planners' perceptions of the groups that wield the most political influence, as well as the main drivers of development regulation. 160 Jackson aggregated the sub-indices to create a stringency measure for each responding jurisdiction. 161
Jackson found that the San Francisco Bay Area is the most stringently regulated region in California. 162 Whereas Southern California is more likely to restrict the form of new development, the Bay Area tends to prohibit development outright. 163 Notably, Jackson also found that the variation in regulatory stringency between coastal and inland communities was not statistically significant. 164 One major variation between coastal and inland communities is affordable housing mandates and low-cost housing alternatives. Coastal jurisdictions, where housing is the most expensive, are more likely to have affordable housing mandates and are more likely to permit mobile home parks than inland communities. 165 Jackson also found that contrary to previous studies, regulatory stringency is not a proxy for supply elasticity.166 Instead geographic constraints are a more appropriate proxy. 1 67 155. Quigley, Raphael & Rosenthal, supra note 14, at 297. 156. Id.
157. Jackson, supra note 130, at 131. The responding jurisdictions comprised more than ninety percent of California's population.
158. Id. at 133.
159. Id. at 142.
160. Id. at 143.
161. Id. at 132.
162. Jackson, supra note 130, at 133.
163. Id.
164. Id. at 134.
165. Id. at 145.
166. Jackson, supra note 130, at 141.
167. Id. Note that unlike Saiz who used GIS tools to measure geographic constraints, Jackson relies on planner's identification of "land supply" as a primary driver of land use regulation in the survey instrument.

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 c. Exploring supply constraints through the case study approach Surveys focused within metropolitan regions or a single state may more effectively pinpoint the actual regulations that might constrain supply than national surveys. But even localized surveys cannot easily evaluate how laws are implemented at a project level. Mixed method case studies offer more insight. John Landis's 2000 report for the Department of Housing and Community Development ("HCD Landis Report") illustrates the value of case studies to explore land use regulations and residential development in California.

The HCD Landis Report is comprised of a case study of 46 housing developments approved between 1995-1997 in 31 cities and counties. 168 The authors selected the jurisdictions based on shared strong demand for housing, policies that were not anti-growth, and extensive experience processing high volumes of development applications. 169 The authors sent surveys to these preselected jurisdictions asking planners to identify a "typical" development in their community. 170 The authors next traveled to the community, reviewed and copied the case file for the typical development, sent the case file to the developer to make any needed corrections, and conducted in-person interviews to supplement any gaps in information. 171
Landis found that the average approval time for the 24 single-family home case studies was 11 months, with each project subject to an average of 3.3 reviews. 1
72 For multifamily units, this timeline shrunk to 6.7 months, with only 2.3 separate reviews. 173 One of these reviews was typically non-legislative-meaning the approval did not require a rezoning or a General Plan Amendment-such as design review or approval by a neighborhood group.

Notably, this work explored the role of CEQA on lag times. 174 Some results were unsurprising. For example, the type of CEQA review directly coincided with approval timeline, with average delays of three years and twelve continuances for EJRs. 175 But other results were surprising. Of the twenty-two 168. JOHN D. LANDIS ET AL., RAISING THE ROOF: CALIFORNIA HOUSING DEVELOPMENT PROJECTIONS AND CONSTRAINTS 1997 2020, 95 96 (Cal. Dep't of Housing and Cmty. Dev. ed., 2000).
169. Id.
170. LANDIS ET AL., supra note 167, at 95. The authors specified a typical project in their survey instrument as: single or multi-family projects larger than 25 units; projects for which the review process had been fully completed; and projects that had experienced a typical approval process.
171. Id. at 96.
172. Id. at 101. The authors define 'review' as "the number of separate discretionary actions by the local planning commission, city council (or board of supervisors) or any other ... review body, such as a design review board."
173. Id. at 107.
174. Landis had specifically explored the role of CEQA in earlier work. See LANDIS, PENDALL, OLSHANSKY & HUANG, supra note 42.
175. LANDIS ET AL., supra note 168, at 102. For a discussion of CEQA review, see Part I.A.2 supra.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
multi-family case studies, only one project had to conduct an EIR.176 Eight projects received NDs, six received MNDs, and six projects were processed under a tiered EIR from a prior Specific Plan. 177 In contrast, three single-family home projects conducted an EIR, twelve projects used a tiered EIR, and eight projects were issued NDs and MNDs. 178
This study's CEQA results have interesting implications for the overall planning process. A third of multifamily projects were processed under a Specific Plan, compared to two-thirds of single-family homes that went through the Planned Unit Development ("PUD") process. 179 The difference in approval times suggests that Specific Plans can significantly cut down on approval delays, although singlefamily home PUDs were approved much faster than re-zones or General Plan Amendments.18 0 The case studies also suggested that certain jurisdictions were not complying with the California Permit Streamlining Act (Cal. Gov. Code § 65950 et seq.), which required all jurisdictions-including charter citiesl'-to approve projects within certain time windows. 18 2
Development selection for this case study limits the capacity for generalizations from the findings. First, the authors selected the jurisdictions based on their openness to new development, which likely skews the approval timeline, causing it to appear shorter. Second, the individual project case studies themselves were selected by local planners, who could import certain biases into the projects they recommend for analysis. Third, the study only looked at one project in each jurisdiction, limiting the ability to assess variance around the "typical" project.

Although the data is over twenty years old, and the contemporary development climate has drastically changed in the intervening years, the McKinsey Global Institute recently used the HCD Landis Report to predict the 176. Id.
177. Id.
178. Id.
179. Id. Planned Unit Development (PUD) in California refers to a zoning classification and a type of development that is intended to provide cities a degree of flexibility not typical of "conventional" zoning by, for example, permitting development of differing form and uses on a single or associated parcels. The definition and operation of the PUD will vary considerably depending on the city and local ordinance. See KOSTKA, supra note 19, § 7.40. The cities we studied, discussed in Parts II, III and IV, illustrate its diverse meaning at the local level. A PUD in San Jose, for example, always requires a re-zoning followed by a second permit that solidifies the design requirements. SAN JOSE MUN. CODE § 20.120.110 (2013). PUDs in Palo Alto called Planned Community Districts also require a rezoning but not a subsequent permit. See PALO ALTO MUN. CODE § 18.38.065 (2014). But a Planned Unit Development in Oakland, San Francisco, and Redwood City operates much more like a conditional use permit. See S.F. MUN. CODE § 304; REDWOOD CITY MUN. CODE §§ 46.1-46.7 (2005); OAKLAND MUN. CODE § 17.142.004. 180. LANDIS ET AL., supra note 168, at 102.
181. CALGOv'TCODE § 65921 (1977).
182. LANDIS ET AL., supra note 168, at 108 09. For example, Negative Declarations must be adopted within 180 days from when the project application is accepted as complete, with certain extensions acceptable for applicant delays. CAL. PUB. RES. CODE § 21151.5 (1997); CEQA GUIDELINES § 15107 (2010). A Final EIR must be certified within one year of the project application's acceptance as complete. CAL. Gov'T CODE § 6595 (1985).

Agenda Item #5.1.

Hastings Environmental Law Journal, Vol. 25, No. 1, Winter 2019 costs of current land use approval processes and the monetary benefits of reform. 1 8 3
Basing these projections on the HCD Landis Report as well as undisclosed expert interviews, McKinsey estimated the current approvals process at six months for simple projects and more than three years for complex projects. 8 4 The McKinsey study found that shortening the approval process in California could reduce the cost of housing by more than $12 billion through 2025 and accelerate project approvals by an average of four months. 1
8 5 The most significant gains of improving
land use processes would accrue to projects that require a zoning change or a General Plan Amendment and projects that require an EIR. 18 6 Savings to projects undergoing streamlining under a Specific Plan are minimal, indirectly suggesting that streamlined approval processes are working efficiently. 18 7 McKinsey likely drew those last conclusions directly from Landis's study, which found that amongst the case study projects, use of long-term planning like Specific Plans reduces delay.' 88 These results suggest that jurisdictions should consider investing in Specific Plans that enable streamlined review for discretionary projects and/or ministerial approvals. 18 9 These results also suggest that land use regulations may be stringent but still efficient in terms of approval times when there is a comprehensive plan for future growth in place.

Remarkably, although developers frequently refer to CEQA as "the third rail of California politics,"'190 current empirical research into how CEQA constrains supply continues to be fairly limited. The California Legislative Analyst's Office ("LAO") has identified CEQA as a culprit in delaying or reducing residential construction in the state. 191 The LAO conducted an independent review of CEQA documents submitted to the state between 2004-2013 and found that agencies took

2.5 years to approve a project-specific EIR. 192 While this figure includes nonresidential projects that could potentially provoke more controversy, it is not inconsistent with the findings of the BLURI survey. But as noted in the Landis 183. See e.g., Jan Mischke et al., A Tool Kit to Close California's Housing Gap: 3.5 Million Homes by 2025, MCKINSEY & COMPANY 28 29 (Oct. 2016); CAL. DEPT. HOUSING & CMTY. DEV., CALIFORNIA'S HOUSING FUTURE: CHALLENGES AND OPPORTUNITIES (2017). 184. MISCHKE ET AL., supra note 183, at 28. The report does not define a simple or complex project.
185. Id. at vi.
186. Id. at 28 29 (2016) (finding that improving approvals for zoning or general plan amendment projects would reduce the timeline from 9 to 6 months, or about thirty-three percent. Improving the process for EIRs would reduce the timeline from 21 to 15 months, or about thirty percent). McKinsey also used undisclosed expert interviews in reaching these conclusions. See id. at 28.
187. Id. at 28 29.
188. LANDIS ET AL., supra note 168, at 110 ("[T]wo-thirds of the single-family case studies were processed as part of a pre-approved specific, community, or area plan . ... [F]or many of the reviewed projects, the most onerous, time-consuming, and controversial part of the development approvals process had already been completed.") 189. MISCHKE ET AL., supra note 183, at 29 30.
190. Bill Allen & Maura O'Connor, CEQA: That 70's Law, L.A. TIMES (Mar. 30, 2011), https://perma.cc/9GS9-VVWK.
191. See LAO REPORT, supra note 5, at 15.
192. Id. at 18.

Agenda Item #5.1.

O'Neill, Gualco-Nelson, Biber, 2019
study and as discussed below, an EIR is not the only CEQA outcome. 193 In 2016, BAE Economics published a study that concluded that no evidence supported arguments that CEQA was a barrier to development (defined to include more than housing), examining four development projects involving environmental review and finding that direct environmental review costs ranged from .025 to .05% of total project costs. 194
In summary, the relevant research on the relationship between regulation and housing costs has found a strong connection, but that research has relied on inferences drawn from the gap between construction costs and sales prices or on surveys of planners and other stakeholders about their understanding of the regulatory process. While some research uses mixed method case studies, the methods still limit generalizability. Overall, the research has also found correlations between high-income levels and property values with regulation, significant variation across jurisdictions in terms of regulatory frameworks and stringency, high levels of complexity in the land-use regulatory process, and possible benefits for facilitating approvals through the use of specific or neighborhood-level planning processes.

2. Understanding land use regulation as a tool of exclusion Another important line of research examines whether stringency in land use regulation is associated with racial and/or economic exclusion, which in turn can contribute to spatial inequality. 195 For example, using income and racial segregation data and the Pendall 2006 land use survey, Rothwell and Massey in 2010 found a strong relationship between density and income segregation. 196 The higher a metropolitan area's density score, the lower the degree of class segregation. 197 These findings support the exclusionary suburb paradigm, in which wealthy suburbs use zoning to maintain low-density development that effectively excludes low-income people and minorities. 198
193. MISCHKE ET AL., supra note 183, at 28 39.
194. Janet Smith-Heimer et al., CEQA in the 21st Century, ROSE FOUND. FOR COMMUNITIES & THE ENV'T (2016).
195. We define spatial inequality to refer to scholarly work that finds that where a person lives may limit a person's access to economic, educational, and quality housing opportunities, and may impact health and life outcomes. This incorporates research that explores racial residential segregation, exclusion, and gentrification. 196. Jonathan T. Rothwell & Douglas S. Massey, Density Zoning and Class Segregation in U.S. Metropolitan Areas, 91 Soc. Sci. Q. 1123, 1123 (2010). 197. Id.
198. See John Mangin, The New Exclusionary Zoning, 25 STAN. L. & POL'Y REv. 91, n.2 (2014). ("Decades of scholarship-legal and sociological-outline how these policies left low-income families stranded in faltering cities whose abandonment by suburban homeowners-to-be at least left behind a large supply of low-cost housing") (citing FISCHEL, supra note 92); Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REv. 1 (1990); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L. J. 385, n.3 (1977); see also S.

Burlington Cty. NAACP v. Twp. of Mount Laurel (Mount Laurel II), 456 A.2d 390 (N.J.

Agenda Item #5.1.