The passage of the 2021 Senate Bill 9 was to herald the end of the single-family zoning that many point to as a culprit in California’s housing crisis. But four months into the new era, little has changed, and the sparse enforcement of the law has largely happened due to housing activists.
The new law, which allows duplexes and subdivided plots on land previously marked as single-family homes, has been met with fierce opposition from cities across the state that have enacted regulations effectively – but not directly – blocking the law in their area.
The state of California – with an annual budget north of $ 280 billion – relies heavily on YIMBY, or “yes in my backyard” activists, to find out about offending cities.
“The majority of how we’ll learn about these cases is through complaints we receive from ordinary citizens, through lawyers and other stakeholders,” said David Zisser, head of the newly created Housing Responsibility Unit of the Housing and Community Development Department. “The fact that we have received complaints across 29 different jurisdictions is a good example of how it works.”
No one knows how many permits cities have issued across the country to subdivide a plot or build a duplex, as this information is not traced in any centralized database. Nor is there a centralized way to track the amount of local ordinances cities have passed to curb use, state officials told CalMatters.
But some lawmakers do not see reliance on external watchdogs as an issue. In fact, advocates have long been the main enforcers of state housing law.
“It would be abnormal if we monitored every action from each of the 500 cities at all times,” said Senator Scott Wiener, a San Francisco Democrat who has been a vocal leader in the Legislative Assembly to promote housing production. “We need to have a robust network of lawyers who monitor, report and sometimes prosecute. In fact, it is a healthy sign that this is happening.”
The Attorney General has sent two strictly worded letters to the cities about the law so far, and the housing department is preparing to do the same. The jury is still out on how the cities will react.
New officers on California’s Duplex Beat
The state Department of Housing received a budget grant of $ 4.65 million last year to build a team of 25 employees – not all of whom will work on full-time enforcement – to ensure that 16 housing laws, which they received explicit authority to enforce, being followed.
It’s a dramatic departure from the status quo, according to Valerie Feldman, a human resources lawyer at the Public Interest Law Project. The nonprofit legal services organization has been suing cities for decades for not building enough housing for low-income residents.
“It’s a big change,” she said. “But it will take time. And they will always need connections on earth.”
Zisser, who heads the unit, said his department had not received explicit statutory authority over the duplex law. One of the laws they can enforce limits a city’s ability to restrict the development of new housing, which is a problem with many of these duplex-hostile regulations. The housing department’s main priority at the moment is the housing element, which the cities must plan for enough housing to accommodate the growing population.
Neither the Attorney General nor the Housing Department have their limited resources at their disposal to track down the local city council and planning meetings where duplex law-related ordinances take place and where city council members say things like, “What we are trying to do here is to mitigate the impact of what we thinks is a ridiculous state law. “
Instead, they rely heavily on lawyers and local journalists to report the altercation. That’s how Bonta’s office found out about Woodside, a Silicon Valley city that claimed immunity from duplex law because the city as a whole was a mountain lion habitat.
A local newspaper first reported the story, and it went viral on Twitter – where many YIMBY activists pointed to Cougar Town as a poster child of the NIMBY mindset (“not in my backyard”). Several news later, Bonta wrote a letter to the city, and Woodside turned the course.
“What we are doing is new in terms of active, visible, aggressive enforcement, so it has a nationwide implication and impact,” Bonta said. “I think we need to see what it’s going to look like. But I think we could always do more, we could always do it faster. “
What could it look like? Bonta may have suggested pouring more resources into enforcement and requiring cities to submit their duplex law implementation rules for state approval, as is the case with housing unit ordinances. While seeing the value in centralization, he said it is not the norm.
“Most laws don’t work that way,” he said. “You create the law for the state of California, and you expect the locals to abide by it.”
The law is still so fresh and complicated for the average homeowner that YIMBYs have been the main officers on the new duplex lovbeat.
Dylan Casey, executive director of the California Renters Legal Advocacy and Education Fund, a YIMBY group, said he and an intern have spent most of their recent Fridays killing city council and planning commission agendas for more than 200 cities, marking which everyday meetings to watch and ordinances to go through. The group has sent warning letters to a few of the 64 cities, which they say have restrictive regulations, and has filed several complaints with the state – which are triggers the state uses to look at cities.
Meanwhile, two employees of YIMBY Law, another pro housing group, with the help of dozens of volunteers across the state, have set up a spreadsheet of 80 cities with restrictive regulations and shared it with the state housing department. Homestead, a development startup that wants to help homeowners divide their land under the new duplex law, has also deployed two employees to track and explain these notices to potential customers.
Zisser and Bonta said they plan to review complaints from these groups, developers and homeowners and step in when a law is broken. About which agency takes on which city, Bonta said, “We do not spend too much time figuring out whether it is them or us, as long as it is someone.”
ADU Deja Vu
Accessory housing units – the small studios, one- and two-bedroom pop-ups across California’s backyards – were technically legalized in 1982. But it wasn’t until 2016 that state legislators allowed homeowners to actually build them by removing prohibitive local rules and fees. Permits for these backyard units have exploded in recent years and account for about 10% of the new housing stock by 2020.
When the first laws to increase ADU construction went into effect in 2017, Senator Bob Wieckowski, a Democrat from Fremont who has drafted five ADU laws, was inundated with calls from homeowners struggling to get permits. The cries for help were eventually translated into stronger enforcement: Now cities must submit their ADUs, if they have them, to the state housing department for approval, and the state attorney can step in when local rules do not meet the pattern.
“You do not want to spend all your money on enforcement,” Wieckowski said. “On the other hand, you can not expect a homeowner to become a plaintiff in the lawsuit against their city.”
Cities often repeat the mantra of local control and compare their struggle against the state with David and Goliath, he said. “No, it’s the city that is Goliath.”
Regardless of the cities’ opposition, Wiener said he expects new duplexes will take several years to realize.
“You need to find out, does it work on this package?” he said. “Is there an existing building there? Can I share a lot? Do I have to hire an architect to see what can be designed? What will work and what will not? And then people do not just immediately apply for a permit. It is not surprising , that it has been a slow start. ”
Enforcement of the housing crisis on social media
Cities and state have been in conflict over solutions to the housing crisis for years, but the new enforcement approach feels punitive for some local elected officials.
Susan Candell, a Lafayette city councilor and member of the California Alliance of Local Electeds, a new group set up last year to oppose “one-size-fits-all” state housing solutions, said cities were on track these hit-and-miss misses because the duplex law provides too much flexibility and not enough guidance. The housing department has accidentally received a complaint about Lafayette’s restrictive ordinance, to which she replied: “We will follow all advice. If we have fallen into a hole, then I apologize.”
When Pasadena, a suburb of Los Angeles, claimed in its executive order that landmark districts would be exempt from SB 9, Bonta wrote a serious warning letter that such districts were not exempt – historic districts were – and that these could be interpreted as large parts of city. They also shared the warning on Twitter.
In a two-page letter reply, Mayor Victor M. Gordo told the residents of Pasadena that the state had made a mistake and that the city was in fact consistent. In his resignation, Gordo “respectfully” urged the public prosecutor to get to know his city before tarnishing its good name on social media.
“Now we should all understand that control from Twitter is ineffective,” the mayor wrote.
The letter points to a broader shift in the enforcement of housing legislation. Esoteric City Council and Planning Commission meetings are now being broadcast online by a growing number of YIMBY activists. Admonitions that were once delivered to city attorneys privately can now go viral on Twitter.
“What I see is that they enforce laws that historically have not been enforced. Part of that enforcement is in the right direction, and part of it is random,” said David Coher, a planning commissioner for the city of Pasadena. .
He attributes to the visible, whose random enforcement, increasing pressure on the state from housing activists.
“This is playing for an audience in a way that it has never played for an audience before,” he said.
Chris Elmendorf, a UC Davis law professor focusing on state housing law, said the mayor’s statement contradicts itself.
“While there may not be a particularly systematic way of gathering information about what cities are doing, cities are more in the public eye than they used to be. And Twitter is a big part of that story, ”he said.
Bonta told CalMatters that the state was not yet ready to sue Pasadena, but would do so if it did not reverse course. His office is already ready to fight a lawsuit from a group of four towns in LA County, led by wealthy Redondo Beach, who claim the duplex law “eradicated” the cities’ control of land use. Bonta recently filed a map in defense of a similar bill that would make it easier for local governments to zone for denser housing near transit.
“The question is, what are the leverage points?” asked Elmendorf. “What are the things you can do effectively that cities will honor and that will ultimately hold up in court? And I think those are the things that are really, really unresolved.”
CalMatters is a public-interest journalistic venture committed to explaining how the California State Capitol works and why it matters.