Will California Get Out Of Its Own Way?
Zoning reform has become a flashpoint for political debate in the United States. While it intuitively seems like it would be an item that can bring polar opposite politics together, it’s become a subject of fury in many jurisdictions, perhaps the largest of which is the Golden State itself, where a state bill essentially, well, eliminated single-family zoning as a default. The YIMBY scene cheered. Housing advocates rejoiced. And the NIMBY and Republican contingents screamed in horror. (It’s not quite clear what exactly Republicans aren’t screaming in horror over, given the number of things of utterly limited substance that seem to outrage them on a daily basis). The problem is that, as controversial as that is, no one is really sure what SB9 actually means. California could serve as an example for the rest of the country, certainly. But there’s not much in the way of impetus to actually enforce the new law. And California, well, frequently defeats itself with these well-meaning laws with poor follow-through.
First off, what is SB9?
Officially known as the California Housing Opportunity and More Efficiency (HOME) Act, Senate Bill 9 is basically a blanket pre-emption of single-family zoning restrictions. It says that if you own a home, you’re allowed to turn it into a duplex– or build an ADU, or what have you. It’s also possible to subdivide a lot to create four units where previously there was but one! (Sort of. More on this in a minute.)
SB9 is one tool that California has proposed to solve its housing crisis. The median home price rose to more than $800,000 in 2022. In the Bay Area, add another 60% to that. But the Bay Area is mostly suburban, and mostly single-family. Yes, we have San Francisco– but we’re talking about places like Palo Alto, where a 1970s ranch will run you a cool few million. And then you still have to sit in traffic when you drive your Tesla into work at Salesforce, because there’s no way you could possibly be bothered to drive to a BART station, or, far worse, sit on a municipal bus. With the dirty poors.
Anyway, SB9 would make it so you can convert your garage on that 1970s ranch into an ADU. Or, hell, you could knock down the whole house and make it a duplex. You own it, after all! Why not?
Bipartisanship? Or not?
This all sounds great on paper. It also sounds like it might be a great opportunity to create consensus in notoriously polarized times. Returning to the partisanship question that has dogged me as a professional living in a still-right-of-center blue state, I have always thought that single-family zoning would be a great bipartisan target. After all, isn’t one party supposedly all about individual rights and property right? Most of the complaints about the riots following the murder of George Floyd, for example, were that private property was being destroyed.
So, I was thinking this would be an easy one. If you own a property, you should be able to do with it what you want, right? It would take another few hundred thousand words to try and unpack why this has sparked such a conservative backlash. There’s some perception that bills like SB9 will result in your neighbor tearing down your home and building a ten-story, Section 8 tenement, infested with vermin (conservatives using this term to either refer to small creatures or poor people). Of course, that’s not going to happen.
But what else might happen? Cities might, well, just not figure out how to respond to SB9. (We’ll give Santa Monica a break after they, ahem, accidentally abolished their whole zoning code? What?)
SB9 Lesson 2: The Law Isn’t Necessarily The Law
One of the great loss-of-innocence moments for me was when I was working as a paralegal and was dismayed to find that there is a chasm that separates “what the law actually says” from “how the law actually works.” There are policies, procedures, guidelines, regulations, and then, most charmingly, there are the whims of the individual administrators of the law. Indeed, many people refer to the regulatory component of the state as the fourth branch of government because it is so powerful– but I’m mentioning this to highlight the fact that the folks tasked with administration of the law or administration of the public sector in general have a pretty broad latitude to operate however they want.
FOIA requests, for example, are nominally required to be settled in a certain amount of time. But if they aren’t? Well, I’m sure there’s some excuse that will be doled out! Filing deadlines, for example, are often spelled out in the written law, but the procedure for filing them is often not. Administrators especially in the judicial realm love to create separate standards for real lawyers than for non-lawyers, even though non-lawyers are hypothetically afforded the right to represent themselves in court and do and say the exact same things that real lawyers do. (Lawyers are kinda like HR professionals in this sense in that they love gatekeeping, and the folks administering judicial and legal processes, ranging from district courts to boards of zoning appeals, absolutely love gatekeeping in the name of order and organization).
This digression isn’t meant to be one of my usual rants– ok, not just one of my usual rants- but rather is meant to illustrate one of the biggest problems in the land of sunshine and traffic violence: especially the most progressive laws in the most progressive places never seem to take into account the actual functional implementation of the law. I have written about this before, like with California’s gig worker law. And this seems to be just the beef of critics, who observe that the numerous restrictions and the complex local exemptions will likely limit the number of homes that could qualify under this densification push to a meager half million, according to an analysis by Slate’s Henry Grabar.
Grabar’s analysis at least partially relies on an assumption that higher development costs, rather than regulations, will impede densification. This is kind of a corollary to the reason why the Golden State lost population for the first time in forever– the rent is just too damn high, so, it follows, new development costs will deter all but much denser development because land acquisition costs are most of the cost.
But it’s certainly an interesting angle in a state that needs quite literally millions of homes– and where all of the ADU permitting city governments can tolerate is still not enough. (Even getting a permit for an ADU can take months). Perhaps the most interesting point in the article is that the “process” vs. “law” dichotomy shows how quickly the well-intentioned SB9 can crumble when it meets local opposition:
With respect to duplexes, municipalities can (and probably will) throw up a number of obstacles to stifle SB 9’s impact, including height limits, floor-area ratio rules, minimum lot sizes, and development fees. Many of those issues may need to be addressed by the California Legislature in a future session, overriding local politicians who fear homeowner revolts and relish the power they wield to issue exemptions to strict zoning laws.
If SB9 can even move California a few steps toward achieving its goal, one thing is certain: Densification is going to demand that Californians start thinking outside the automobile. The cries of, “but what about the parking?” are already old hat for anyone who has ever worked in city planning or community development. While California’s state legislature has worked hard to craft bills to keep the state at the forefront of supposedly progressive thinking, the private sector has been promising solutions for many years. Lyft and Uber were meant to solve urban traffic congestion, just as freeways were once meant to solve urban traffic congestion. When that didn’t pan out, the industry turned to autonomous vehicles. And, uh, we see how that went.
We shouldn’t view SB9 based on the narrow binary of victory or defeat. Detractors and critical observers are variously either pointing out that the bill doesn’t go far enough, or that it is being preëmpted by local control anyway. Other critics point out that duplexes are a harder sell in most markets, as much as people often do like building ADUs. These are valuable critiques, of course. But they don’t mean that SB9 is a failure. After all, it’s pretty monumental when a single bill can even attempt to preëmpt local control around exclusionary zoning.
Rather, we should look at it as a thesis vs. antithesis vs. synthesis kind of thing. As the state muddles through the massive cost overruns of its “bullet train to nowhere” project, we could either scoff at it as a boondoggle, or consider it a possible entrée into a brave new world of infrastructure. If California wants to get something done, it’ll get it done– the state just needs to get out of its own way and figure out how to make SB9 and similar bills more of an actionable prospect rather than a vague suggestion.