91视频

Following discussions in legislative and policy circles for more than four decades, the state of California has joined Oregon in taking strong steps to provide tools to housing developers to mandate local approval of their proposals.

A little background will help. In 1978, advocates for lower property taxes used lack of housing affordability as well as ever-increasing local property taxes to argue for a cap in annual increases. The result was a limitation of such taxes at 1 percent of the value of a residential use, a rollback of assessed valuation to 1976 levels, restricted increases in assessed valuation to 2 percent per year, and prohibition of other reassessment except by change of ownership or completion of new construction.

The results provided much comfort for existing residential landowners as their home values increased significantly. It also meant a significant revenue loss for local governments; local planning and development programs had to find other sources of revenue for land acquisition and construction of infrastructure. With this backdrop, the price of California housing has skyrocketed in the past 45 years or so, making it difficult for low- and moderate-income Californians to find shelter and contributing to that state鈥檚 homeless population.

Unlike Oregon, California does not have a single statewide agency charged with promulgating land use policy. Rather, up until lately, planning and funding for housing was done on an ad hoc basis at the local level. Those funds have fallen far short of the need, and as a result, the California Legislature has turned to other means of boosting the number of housing units by revising land use regulations and others.

One remedy of necessity is inclusionary zoning, by which a certain portion (usually around 15 percent) of housing developments is set aside for sale or rental as low- or moderate-income housing, with covenants or other means to assure the subsequent owner or renter does not 鈥渇lip鈥� the unit to pocket the differential by converting the same to market price or rental. While this practice is used extensively in California and elsewhere, it has not been before the United States Supreme Court, which may find this instrument to be an unconstitutional 鈥渢aking.鈥�

A more recent case illustrates another legislative effort that may be more promising. Under California鈥檚 Housing Accountability Act (HAA), enacted in 1982 and significantly strengthened in 2017, local government authority to deny or reduce the density of housing developments by the use of discretionary standards is severely limited. A 2017 amendment to the HAA states that a housing project is deemed to comply with all local objective standards if there be substantial evidence in the record that would allow a reasonable person to conclude that the project complies with the local standards. Further, where a development 鈥渃omplies with applicable, objective general plan and zoning standards and criteria,鈥� the project cannot be denied or reduced in density without a finding of specified health and safety concern. This provision now specifically includes design guidelines.

A recent case construing the strengthened version of the HAA, California Renters Legal Advocacy and Education Fund v. City of San Mateo, involved the use of the city鈥檚 design guidelines requiring a 鈥渁 transition or step in height鈥� if the proposed structure were more than one story taller than adjacent single-family homes. The city concluded the guidelines were met only if the applicant removed one of the proposed structures鈥� four stories where they faced smaller (two-story) single-family homes. The city鈥檚 staff and planning consultant had earlier advised that a sufficient 鈥渢ransition鈥� was provided by the trees separating the two developments. That apparent ambiguity proved to be fatal to the city鈥檚 position.

First, the California Court of Appeals rejected the city鈥檚 argument that local 鈥渉ome rule鈥� authority allowed it to avoid the legislative mandate requiring provision of additional housing. The appellate court also overruled the trial court鈥檚 conclusion that the design regulations were 鈥渙bjective鈥� standards that could be used to regulate the development and noted the increasing legislative activity in encouraging housing production and limiting local government regulations over housing developments unless it adopted findings to show that the project 鈥渨ould have a specific, adverse and unavoidable impact on public health or safety.鈥� It wasn鈥檛 difficult to read the statutory tea leaves so that, after finding the statutes did not violate the Home Rule provisions of the state constitution, the court required the city to approve the proposal.

Oregon has had some of the same experiences with respect to property tax limitations via the initiative process, though with fewer impacts on local government finances. But Oregon has led the way with regard to effective state involvement in removing local barriers to housing developments, beginning with the required use of only clear and objective criteria to those projects and that may not, either in themselves or cumulatively, discourage housing through unreasonable cost or delay. These Oregon laws have been used recently to reverse local denials of housing projects and expose the local governments to attorney fee liability in the process.

Combined with the requirement that urban areas complete processing of almost all land use applications within 120 days, these safeguards assure that applicants will get a timely response at the local level. Moreover, with the passage of House Bills 2001 and 2003 in 2019, the monopoly of the detached single-family home in the single-family zone has given way in larger Oregon urban areas to a regime that emphasizes housing choice. California鈥檚 efforts may make the headlines, but housing equity is more likely to occur in our state.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.