This section begins with an overview of the housing element requirements in California and the law's current status, and then focuses on a pilot program currently underway in the San Diego region to transform the housing element process by rewarding jurisdictions for the actual production of affordable housing.
In 1975, AB 1X instructed HCD to adopt housing element guidelines and authorized the department to review and comment on local housing elements. The resulting 1977 guidelines called for new housing elements to contain an unprecedented degree of specific detail in their analysis of housing needs, resources, and programs.
The 1977 guidelines became the subject of controversy over whether they were advisory or binding upon cities and counties. The Legislature resolved the controversy in 1980 by statutorily specifying a housing element's requirements, declaring HCD guidelines to be advisory, and requiring cities and counties to "consider" the department's findings prior to adopting the element. (See Table 1 for a summary of the State housing element requirements.)1
In the ensuing years, housing element law has become more and more lengthy, and arguably compliance more cumbersome for jurisdictions to achieve. While HCD's comments are officially considered advisory, because a finding of element compliance by HCD offers significant protection against litigation, most jurisdictions undertake significant efforts to obtain HCD certification of their elements. Nevertheless, as of December 31, 1995, approximately 40 percent of the jurisdictions statewide had not been able to attain a finding of compliance by HCD. This difficulty in achieving State HCD compliance, combined with a process viewed by many as an exercise in paperwork with little relationship to actual housing production, has led to a series of proposed measures to "reform" both the housing element content and process.
Since the early 1990s, various interested parties -- including local governments, housing advocates, builders, realtors, and the state -- have been working to negotiate the details of housing element reform legislation. The focus of the proposed reforms has been to:
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Government Code Section 65583 (A) Needs Assessment and Inventory of Constraints and Resources
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(B) Statement of Goals, Quantified Objectives, and Policies |
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(C) Five-Year Housing Program
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(D) Public Participation |
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Government Code Section 65584 - Regional Housing Needs Assessment |
During the past five years, numerous pieces of reform legislation have been considered by the State legislature. Because support has been fractionalized among the various stakeholders, none of these efforts has succeeded. Most recently HCD is refocusing its efforts on internal, non-legislative reforms to streamline requirements and state review processes. To complicate matters further, since 1992-93, the State legislature has suspended the funding of certain housing element mandates, including the regional housing needs allocation process (also known as the regional share or fair share process). As a result the existing five year housing element planning period has now been extended twice by a total of four years (resulting in a planning period of 9 instead of 5 years). To illustrate the problem, while all 190 jurisdictions in the Southern California Association of Governments (SCAG) region are required to update their existing 1989 elements by June 30, 1998, SCAG will not be preparing the regional housing needs figures that are the foundation of local jurisdiction housing element needs assessments because there is no state funding to do so. If not resolved, this situation will lead to an uncoordinated and piecemeal process with each jurisdiction responsible for preparing their own "fair share" figures. Funding for the regional share process for the councils of governments is now being considered in the state's budget..
With the current status of the California housing element process in upheaval, jurisdictions statewide are anxiously awaiting the outcome of a new pilot study being undertaken by the San Diego Association of Governments (SANDAG) which would allow jurisdictions to "self-certify" their elements and avoid HCD review upon achievement of established performance standards. If successful, the results of this pilot program could be transferred to other jurisdictions throughout the State.
To self-certify their housing elements, local jurisdictions must meet all of the following criteria:
Self-certification is not a new idea to the San Diego region. The Regional Growth Management Strategy, adopted in 1993, contains a self-certification process undertaken by all nineteen local jurisdictions to assess their progress in achieving objectives for air quality, transportation, open space, housing and other quality of life elements. The San Diego region also has set its own "fair share" goals for providing affordable low income housing opportunities in its Regional Housing Needs Statement, and has prepared a Regional Housing Needs Performance Report on a regular basis assessing progress towards those goals. Because of these experiences, the San Diego region is a good testing ground for self-certification.
In conclusion, it is hoped that self-certification will encourage innovation and flexibility in approaching housing element law at the local level, and minimize paperwork at the State HCD and local level. With the opportunity to broaden the array of local programs that can receive "credit" and avoid complicated and lengthy state review, successful housing element certification would reward localities that are providing affordable housing opportunities. The results the region's experiment are not in yet. Discussion of the performance standards by the Housing Element Advisory Committee is continuing. And whether the committee can reach consensus remains to be seen. The effect of the State Department of Housing and Community Development's proposals to streamline their review of housing elements could cause participants to decide that the self-certification process is more burdensome than state review, and therefore, unnecessary. Only time will tell.
The willingness of local jurisdictions to address the need for affordable housing in their housing elements has been mixed. The City of Las Vegas, for example, adopted its most recent housing element in 1992. Clark County, on the other hand, had not revised its housing element since 1983. The Nevada Legislature decided to change this pattern in 1995, however, when it adopted Assembly Bill 506.
Affordable housing became a dominant issue in the 1995 Nevada Legislature, largely due to the efforts of Assemblywoman Barbara Buckley, an attorney with Clark County Legal Services. A seasoned housing advocate, she introduced five significant housing bills, four of which passed and were signed into law. The most significant bill was Assembly Bill 506, which amended the language concerning housing elements. AB 506, which became effective in October, 1995, mandated that housing elements include:
Although AB 506 mandates that every jurisdiction in Washoe and Clark counties adopt housing elements that conform with the above language, the law contains no deadlines and does not set any penalties for non-compliance. In addition, there is no mechanism for state review of the housing elements. Unlike California and Washington, Nevada does not have a state agency that reviews local comprehensive plans. Only two planners work for the state and they are located in the State Lands Division, which functions more as a data gathering and technical resource agency, especially for rural areas of the state.
It will be interesting to see how local housing elements document affordable housing needs. AB 506 complicates the needs analysis requirements by defining affordable housing as housing affordable to a family with a total gross income less than 110 percent of the median gross income. By raising the household income limit to 110 percent instead of the standard 80 percent income limit, AB 506 automatically includes non low-income households.
During the summer of 1996, Assemblywoman Barbara Buckley chaired an interim legislative committee to study housing programs in Nevada. Picking up where AB 506 left off, the Committee adopted 15 recommendations, including 8 bill draft proposals (Housing Programs in Nevada, Legislative Counsel Bureau, January 1997). One of these proposals would permit counties to donate their surplus parcels to affordable housing developers. Another proposal, which is controversial, would require that local jurisdictions approve all affordable housing developments unless specific findings were met. Another controversial proposal to come out of the Buckley Committee would prohibit local entities from discriminating against HUD Code Mobile Homes. Most Nevada jurisdictions still keep HUD Code Mobile Homes out of the single family zoning districts.
One issue that AB 506 does not address is the regional distribution of different types of housing, including affordable housing. Last year, the City of Las Vegas instituted a moratorium on all apartment approvals in the northwest portion of the city while a private consultant completed a new land use plan for this area. A Las Vegas City councilman has argued that the city should not bear the burden of accommodating new apartments when most of the jobs are created by the casinos on the "Strip," which is located in unincorporated Clark County. The City of North Las Vegas, on the other hand, has not approved any multifamily units for several years, but has encouraged significant levels of single family development. With almost 6,000 residents coming to southern Nevada every month, the question of where new residents will live, let alone how much they must pay for housing, could become more of a critical issue.
In 1950, about 2.3 million people lived in Washington state. By 1990, the population had more than doubled to 4.8 million. The Growth Management Act (GMA) requires the faster growing counties and cities within the state to plan for that growth, and provides guidance and encouragement on how to accomplish the task. However, the legislation is silent on many specific requirements, preferring to allow local governments to design their own programs to fit local needs, opportunities, and priorities. Under GMA, there are four basic steps that local government planning must follow:
To help local jurisdictions meet GMA requirements, the state prepared a set of procedural criteria for each element of the comprehensive plan, provided extensive technical assistance including a series of guidebooks and workshops on required topics and made flexible grant money available.
The Act identifies 14 goals that guide GMA plans and regulations. The goal for housing is to "Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock."
It is also significant to note that one of the 14 goals encourages citizen participation and involvement in the planning process, and an entire guidebook was prepared on this subject alone. This requirement of citizen participation has become the primary tool of enforcing and monitoring local compliance with the GMA.
In recommending the inclusion of a housing clement in the Comprehensive Plan, the Growth Commission described an affordable housing crisis in the state. Housing prices had outpaced incomes, preventing middle income people from purchasing homes, and creating a situation where more than one-third of low-income renters in the state paid more than thirty percent of their income for rent. The commission recommended that each community be required to take its "fair share" of needed housing. However, the state has stopped short of requiring a specific formula or procedure on how this is to be accomplished. In fact, the requirements for the Housing Element are broad; specifically, the requirements for a housing element which are mandated by the Act are:
A housing element recognizing the vitality and character of established residential neighborhoods that:
To determine how plans would be reviewed and certified, and how disputes would be resolved, the state again turned to a participatory process. Most of the people involved in the negotiations did not want the state to certify plans or to develop rules to clarify GMA requirements. They did want a system that would be timely and effective, and sensitive to regional differences. As a result, three regional hearings review boards were established. Although draft plans and development regulations are reviewed by state staff at CTED who may provide comments on the draft plans, the state has no standing to require any revision of the draft. Once the plan is adopted by a local jurisdiction, it is presumed valid unless a petition is filed and the hearings board decides otherwise based on a "preponderance of the evidence." Citizens who believe that a jurisdiction's plans, policies, and/or development regulations do not meet the requirements of GMA may file petitions with their regional growth management hearings board. The state may also bring cases. This system relies on citizen involvement to monitor the plans and bring challenges when they believe strongly that something is amiss.
The hearings board may send a plan or regulation back to the local government for changes or, in exceptional cases, the board may invalidate all or part of a plan or regulation. Local governments can achieve GMA compliance after a board ruling of non-compliance by revising their plan or regulations. The Governor is authorized to impose sanctions on cities and counties and state agencies who do not comply with the GMA goals and requirements as determined by the hearings boards. These sanctions include withholding specified tax revenues and state agency funding allotments.
As of December 1996, over 170 draft comprehensive plans had been submitted to CTED for review and comment, and local governments had adopted or amended more than 800 plans and regulations which could have motivated petitions to the state hearings boards. The boards have received 396 petitions challenging 181 local plans or regulations. The hearings boards upheld the local government actions in 70 percent of the cases. Only ten local governments have had some part of their plan or regulations invalidated, and fewer than 25 percent of the cases have resulted in remands. Only about 12 percent of cases have been appealed to superior court, and only 7 have been recommended for sanctions. Sanctions were actually applied in only one case. Most cases are resolved within six months.
Few of these cases have involved housing elements and regulations but there is at least one example. As the result of an appeal by the Children's Alliance and the Low Income Housing Institute, the City of Bellevue's development regulations for group homes were remanded back to the city twice. The second time the hearings board recommended that the Governor impose sanctions. The case was appealed to Superior Court. In January 1997, the U.S. District Court concluded that the ordinance, which sought to restrict siting of group homes in residential areas, violated fair housing laws and invalidated the ordinance in its entirety.
The experience of most jurisdictions has, however, been more positive, although still challenging. In bringing citizen input, housing needs, and policy mandates together to form a new housing element, local jurisdictions have struggled to find the balance required to meet objectives that at first seem to be contradictory, like meeting the need for affordable housing while preserving the quality of existing neighborhoods.
In Redmond, a small city within the predominantly urban King County, employment has risen at a significantly faster rate than residential development, adding pressure to housing demand in the area. Redmond's planning commission struggled with issues related to density, duplexes, accessory dwelling units, and small-lot, single family homes. The process raised awareness of the issues and the city has demonstrated its responsiveness to the challenge by several key actions: 1) by allocating general funds for affordable housing; 2) by working with neighborhood groups to foster acceptance of higher density developments; 3) by considering the transfer of surplus federal property to affordable housing developers; and 4) by working with private developers to create more housing in downtown.
Other results are starting to be noticed. Currently the fastest growing county in the state is Clark County, with a growth rate of 27.5 percent since 1990. The Vancouver Housing Authority has responded to the pressure for affordable housing by forging partnerships with private developers to promote housing for first-time home-buyers. Mutual recognition of the need for affordable housing has fostered a spirit of cooperation between the housing authority and city and county governments resulting in the development of mixed income housing scattered throughout the county, but especially near employment centers and along transportation lines. In the City of Tacoma, a nonprofit developer used an innovative housing tax incentive established as a result of the GMA to help finance a 60-unit apartment building near the edge of downtown.
In the future, much will depend on forces beyond the control of local government. Will state and federal programs that finance and support affordable housing development continue? Will there be adequate public financing to help local governments meet their affordable housing goals? Is there the public will to demand support for these resources? Is there a constituency that will challenge local jurisdictions to meet their affordable housing goals? A growth management process that relies on public involvement has a greater chance of success as citizens work together to achieve the goals that they set for themselves.