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Home    |   Print Edition   |   Making It Work: Legal Foundations for Administrative Reform of California’s Housing Framework

Making It Work: Legal Foundations for Administrative Reform of California’s Housing Framework

Jun 25, 2021

Christopher S. Elmendorf, Eric Biber, Paavo Monkkonen, & Moira O’Neill

Volume 47 (2020) - Issue 4

Since 1980, California has had an ambitious planning framework on the books to make local governments accommodate their fair share of regionally needed housing. The framework long relied, however, on a rickety and complicated conveyor belt for converting regional housing targets into actual production. Superintending the conveyor belt was an administrative entity, the Department of Housing and Community Development, whose rules had no legal effect, and whose judgments about the adequacy of a local government’s housing plan received virtually no deference from the courts. This Article contends that the Department’s position has been fundamentally transformed by a series of individually modest but complementary bills enacted from 2017 to 2019. The Department now has authority to strengthen, simplify, and supplement the conveyor belt in ways that would have been (legally speaking) unimaginable just a few years ago. More specifically, the Department may (1) adopt an “expected yield” definition of site capacity, which would more than double the amount of nominal zoned capacity that local governments must provide; (2) promulgate metrics and standards for whether the supply of housing within a local government’s territory is substantially constrained; and (3) insist, as a condition of housing-plan approval, that poorly performing local governments adopt major, substantive reforms to local development processes, regulations, and fees. Though it’s doubtful that the Department could mandate particular constraint-mitigation measures, such as ministerial permitting, the Department may incentivize their adoption by announcing compliance safe harbors.