San Francisco Chronicle

Cities sued over late housing plans

- EMILY HOEVEN Emily Hoeven is a San Francisco Chronicle columnist and editorial writer. Email: Emily.Hoeven@sfchronicl­ Twitter: @emily.hoeven

Housing advocates are about to deliver a message to the Bay Area: Comply with state housing law or face the consequenc­es.

The message is being delivered in the form of 12 lawsuits, most of which will be publicly unveiled for the first time Tuesday by three pro-housing legal nonprofits: YIMBY Law, the California Housing Defense Fund and California­ns for Homeowners­hip, which was founded and is financiall­y supported by the California Associatio­n of Realtors.

The three groups are suing Belvedere, Burlingame, Cupertino, Daly City, Fairfax, Martinez, Novato, Palo Alto, Pinole, Pleasant Hill, Richmond and Santa Clara County for failing to follow state law, which required them to adopt by Jan. 31 a blueprint — called a housing element — outlining how they plan to accommodat­e their share of the 2.5 million homes California is asking cities to prepare for by 2030.

Most of the local government­s targeted by these lawsuits didn’t adopt plans at all, the groups’ legal counsel told me, while others gave the illusion of compliance by greenlight­ing their own blueprints, even though these plans hadn’t been reviewed by the state Department of Housing and Community Developmen­t.

Among the lawsuits’ main goals: Force local jurisdicti­ons to comply with state law by developing and adopting a plan for building the required number of homes and reminding them that they’re subject to what’s known as the builder’s remedy while they’re out of compliance.

The builder’s remedy — an as-yet relatively untested provision of California law — allows developers to bypass local zoning standards in noncomplia­nt cities to build residentia­l projects with a certain percentage of low-income or moderate-income units.

So why are the lawsuits necessary, given that the builder’s remedy technicall­y goes into effect the moment a city’s housing element falls out of compliance?

“The thing we hear from a lot of cities is, ‘We’re working on (the housing element). We’re trying,’ ” said Matthew Gelfand, attorney for California­ns for Homeowners­hip. “But while you’re working on it (past the deadline) you have to understand that you’re subject to certain penalties. … And that’s when we end up suing because they don’t want to acknowledg­e the penalties that come from the fact that they didn’t do their jobs earlier.”

He added, “It’s particular­ly frustratin­g in the Bay Area, because … they saw what happened in Southern California.”

What happened in Southern California was more lawsuits. Cities there had been required to adopt housing elements by Oct. 15, 2021 — but many failed to do so, prompting a spate of similar lawsuits from California­ns for Homeowners­hip. These largely resulted in settlement­s that required the cities to adopt compliant housing plans by a certain date, with state reviews along the way, and forced them to acknowledg­e they were subject to the builder’s remedy, Gelfand said.

“I definitely think cities thought they could get away” with drafting sham housing plans or missing the state deadline, said Greg Magofña, director of developmen­t and outreach for the California Housing Defense Fund. “And I still think cities still think they can get away with things. … Government­s in general are made to operate in the status quo, so if you change them very drasticall­y, there’s always resistance to that.”

John Goodwin, a representa­tive for the Associatio­n of Bay Area Government­s, which helped develop the region’s overall housing plan, told me in an email, “More than 90 of the Bay Area’s 109 cities, counties and towns had at least submitted a first draft of their housing element to (the state housing department) by the Jan. 31 deadline. That’s no small feat, given the many changes in state law and the myriad requiremen­ts local government­s are obliged to meet. We expect a lot of communicat­ion back and forth between Bay Area jurisdicti­ons and the (state) over the next few months, at which point it will become clearer if there really is any foot-dragging, what the consequenc­es might be and where we might see those consequenc­es play out.”

Housing advocates say more lawsuits are on the way.

“From my perspectiv­e, this is just the first step in a kind of generation­al campaign to completely change the way land-use regulation gets done,” Keith Diggs, an attorney for YIMBY Law, told me.

While it is indeed frustratin­g that Bay Area government­s didn’t learn from their counterpar­ts in Southern California, what is especially frustratin­g is that lawsuits are necessary at all.

We are talking, after all, about enforcing that simplest of concepts: the deadline. It’s baked into us in elementary school; if you don’t turn in your homework on time, there will be consequenc­es.

Like kids arguing over whether they should have to do homework, many California cities seem intent on arguing about whether they should have to plan for and build housing. But, regardless of their thoughts on homework or housing, the deadline exists. And if they don’t meet it, that’s on them.

The state gave local government­s a deadline. They knew about the deadline years in advance. They knew about the consequenc­es. They chose not to meet the deadline.

Taxpayer resources shouldn’t have to be spent on lawsuits to remind government­s of their responsibi­lities. But here we are.

 ?? Jessica Christian/The Chronicle 2020 ?? Workers construct two affordable housing developmen­ts on the Embarcader­o near Broadway in San Francisco in 2020.
Jessica Christian/The Chronicle 2020 Workers construct two affordable housing developmen­ts on the Embarcader­o near Broadway in San Francisco in 2020.

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