Fair-share housing in California has gone through six stages since the requirement was established as the housing element in the general plan. At first, each stage required greater rigor and care than the previous one in preparing the housing plan. After a while, the state also began reviewing local elements for compliance with state law, challenging cherished traditions of home rule. All the while, however, the focus was exclusively on housing. Most recently, planning implications of housing have forced a broader focus, now also beginning to consider other regional planning concerns dealing with transportation, air quality, and the environment.
Mount Laurel I—Southern Burlington Council, N.A.A.C.P. v. Township of Mount Laurel, 336 A. 2d 713 (N.J., 1975) and Mt. Laurel II—Southern Burlington Council, N.A.A.C.P. v. Township of Mount Laurel, 456 A. 2d 390 ( N.J.1983); John M. Payne, “The Paradox of Progress: Three Decades for the Mount Laurel Doctrine,” Journal of Planning History5, no. 2 (May 2006): 126–47; Howard Gillette, Jr., “ Planning After Mount Laurel: To Gild `the Ghetto' or Disperse It?” Journal of Planning History5, no. 2 (May 2006): 148–61; and Robert Fishman, “`Variety and Choice:' Another Interpretation of the Mount Laurel Decisions , Journal of Planning History5, no. 2 (May 2006): 162–66.
2.
Payne, “ Remedies for Affordable Housing: From Fair Share to Growth Share,” Land Use Law & Zoning Digest49 (June 1997): 3; Daniel R. Mandelker , “ The Affordable Housing Element in Comprehensive Plans,” Boston College Environmental Affairs Law Review30 (2003): 557.
3.
Brian Augusta , “Building Housing from the Ground Up: Strengthening California Law to Ensure Adequate Locations for Affordable Housing ,” Santa Clara Law Review39 (1999): 503–43; Robert W. Burchell, David Listokin, and Arlene Pashman, Regional Housing Opportunities for Lower Income Households: A Resource Guide to Affordable Housing and Regional Mobility Strategies (New Brunswick, NJ: Rutgers University, Center for Urban Policy Research , March 1, 1994); Stuart Meck, Rebecca Retzlaff, and James Schwab, Regional Approaches to Affordable Housing (Chicago: American Planning Association, 2003); Planning Advisory Service Report Number 513/514; and William C. Baer, “The Evolution of Local and Regional Housing Studies,” Journal of the American Planning Association52, no. 2 (Spring 1986): 172–84.
4.
For an extensive analysis of how the law has worked in terms of what types of cities have complied with the law and produced the needed housing, see Paul G. Lewis, California's Housing Element Law: The Issue of Noncompliance ( San Francisco: Public Policy Institute of California , 2003).
5.
Department of Housing and Community Development [HCD], California's Deepening Housing Crisis (Sacramento, CA: Division of Housing Policy Development, March 5, 2007).
6.
Ibid.
7.
Paul E. Peterson, CityLimits (Chicago: University of Chicago Press, 1981), 25.
8.
Conventionally, the three types of policy at the local level that stir up different types of politics are “developmental” (e.g., promoting economic growth—taking resources from the many, rich and poor, to reward those few who will enhance the local economy for the many), “allocational” (e.g., basic services such as police and fire, education, water, and sewer, paid by the many for the many), and “redistributional” (e.g., welfare, low-income housing—taking from the haves and giving to the havenots), though in practice there is often a bit of a mixture of these policies and their politics. See Peterson, City Limits; Thomas R. Dye, “ The Policy Consequences of Intergovernmental Competition,” Cato Journal10, no. 1 (Spring—Summer 1990): 59–73.
9.
Peterson, City Limits.
10.
Ibid.
11.
See Sarah Christie and John Bowers, Report on Affordable Housing Program, Memorandum W 10a (San Francisco: California Coastal Commission, March 6, 2002).
12.
The measure was found to be constitutional in February 2006. George Homsy, “ Sons of Measure 37,” Planning72, no. 6 (June 2006): 14–19; Ron Bass, “ What's the Meaning of All This?” Planning72, no. 6 (June 2006 ): 17.
13.
A recent overview is found in Enrique R. Silva, “ Unpacking Municipal Home Rule: Can California Regionalists and Locals Talk to One Another?” Berkeley Planning Journal17 (2004): 29–55.
14.
Charles R. LeMenager, “ Remarks,” in Summary Report on Housing Element Symposiums , ed. HCD et al. ( Sacramento, CA: HCD, n.d.): 2. This regulatory reduction approach was the start of what subsequently became a national effort, partially coordinated by the U.S. Department of Housing and Urban Development under the name of Regulatory Barriers Clearinghouse (http://www.huduser.org/rbc/FirstTimer.htm ).
15.
A prime mover was William Leonard, executive vice president of the Associated Home Builders of the Greater East Bay.
16.
1967 Cal Stats., ch. 1658 § 4.
17.
National Commission on Urban Problems, Building the American City (Washington, DC: Government Printing Office , 1968).
18.
The regional emphasis was stated by many of the participants in the statewide symposiums conducted in 1968. Indeed, those early comments foreshadowed much of what was to be subsequently enacted into law during the next forty years. What the participants could not have foreseen was the devil in the details of fair sharing. HCD et al., ed., Summary Report. See note 12.
19.
The nation's first regional housing allocation plan was in Ohio in 1970. See Miami Valley Regional Planning Commission , A Housing Plan for the Miami Valley Region ( Dayton, OH: Miami Valley Regional Planning Commission , 1970).
The California Chapter of the American Institute of Planners recommended in a position paper presented to HCD (The Housing Element in the General Plan, 1968, 34—40) that an acceptable housing element consisted of (1) a statement of goals, (2) how responsive the local housing market was to the needs of all economic segments, (3) what constraints impeded needs being met, (4) establishing housing program targets, and (5) “a legislative Commitment to a specific program of action to meet the targets.”
22.
George Moscone , State Senator, Cover Letter to Honorable Ronald Reagan, Accompanying Senate Bill 1489 passed in the Legislature, Sacramento, CA (December 10, 1971); Cal Stats., ch. 1803 § 1.5.
23.
1972 Cal. Stats., ch. 902 § 1. The element approach to general plan making continued to gain adherents: by 1975 the additional elements were open space, conservation, seismic safety, noise, scenic highways, and safety. See Office of Planning and Research, Local Government Planning Survey, 1979 (Sacramento, CA : Office of Planning and Research, 1979).
24.
Attorney General, Opinion No CV 72-33 (1972). There is insufficient space here to detail the intense legal wrangling that took place over the issue of guidelines versus regulations. The attorney general's opinion was at odds with the legislative counsel's, and various state courts split over the correct interpretation. The legal aspects and history are documented in Michael Rawson, “California's Housing Element Guidelines and The Housing Crisis,” Golden Gate University Law Review10, no. 2 (1980): 729–63.
25.
HCD, California Statewide Housing Element, phase II, (Sacramento, CA: HCD, November 1973), 12.
26.
Attorney General, Attorney General's Report on Low and Moderate Income Housing (Sacramento, CA, January 1976); Attorney General, Letter to Cities and Counties (Sacramento, CA, March 1, 1976).
27.
Rawson, “ California's Housing Element Guidelines,” 745.
28.
Ibid., 740–41.
29.
Mandelker, “ Affordable Housing Element,” 560–80.
30.
Attorney General, Letter to Cities and Counties.
31.
Institute for Local Self Government, Local Governments' Role in Housing: Including League of California Cities' Housing Policy Statement (Berkeley, CA: Hotel Claremont Building, September 1975).
32.
League of California Cities, Legislative Bulletin (Sacramento, CA: League of California Cities, October 28, 1976).
33.
Joint Hearings of the Assembly Committee on Housing and Community Development and the Senate Committee on Local Government , California Statewide Housing Plan and Housing Elements (Sacramento, CA, July 26, 1977).
34.
Peter M. Detwiler, “The Tree in the Windstorm,” CaliforniaPlanner8, no. 1 (April 1985): 1, 8–9.
35.
Bill Higgins , The Housing Element: Overview, Observations, and Obstacles (Sacramento: Institute for Local Government, League of California Cities, 2004 ).
36.
Speaker's Commission on Regionalism, Final Report: The New California Dream, Regional Solutions For 21st century Challenges (Sacramento, CA, January 13, 2002), 12; Little Hoover Commission , Rebuilding the Dream: Solving California's Affordable Housing Crisis (Sacramento, CA, May, 2002), 7.
37.
Parts of the account in this paragraph are taken from a student paper by Dana Ricard, who had access to some of the participants. Ricard, Political History of the Housing Element Legislation, PLUS 590, Directed Research (Los Angeles: University of Southern California , April 1984).
38.
Mike Roos, Assemblyman, Press Release (Sacramento, CA, September 26, 1980).
39.
Detwiler, “ The Tree in the Windstorm,” CaliforniaPlanner7, no. 10 (December 1984) 1, 3, 5–7.
40.
Ben Field , “Why Our Fair Share Housing Laws Fail ,” Santa Clara Law Review34 (1993): 43–44.
41.
Senate Committee on Local Government, Housing Element Law: A Summary Report from the Interim Hearing (Sacramento, CA, December 8, 1993), 32–33.
42.
Ibid., 62.
43.
Ibid.
44.
Senate Committee on Housing and Land Use, Housing Element Law : A Summary Report from the Special Hearing ( Sacramento, CA, March 27, 1995), 33, 55–56, 68.
45.
Ibid.
46.
Housing element bills are relatively easy to categorize, but what a “housing” issue is versus, say, a consumer issue or one of taxation is less easy to classify. A bill about residential property tax reductions, for instance, is a tax bill, a housing bill, and a consumer expenditure relief bill. Furthermore, our source—the California Housing Law Project (http://www.housingadvocates.org)— changed its way of denoting “housing” bills starting in 2000, taking a broader scope of what pertained to their interests. Most housing element and housing bills did not pass; some dealing with the same topic were introduced in both the Assembly and Senate, so there is a bit of double counting (though the bills were not exact mimics of one another), and occasionally the same bill, if failing, was introduced again in subsequent years.
47.
HCD, Testimony—Senate and Assembly Joint Housing Committee Hearing on the Housing Element Working Group (Sacramento, CA: HCD, January 24, 2004); Housing Element Working Group, Final Report (Sacramento, CA: HCD, April 2004).
48.
Ibid. Members of this working group, besides HCD representatives, included Councils of Government, the League of California Cities, California Association of Planners, California Building Industry, California Rural League Assistance and other public interest groups, Non-Profit Housing Developers, California State Association of Counties, and the Silicon Valley Manufacturing Group. Seven meetings were held between June and November 2003. It is unclear whether the California Association of Realtors (CAR) was directly involved, but their annual report for 2005 discussed their advocating parallel legislation that attempted to pry open more building opportunities for affordable housing. CAR, State Legislative Issues Report 2005 (Sacramento, CA: CAR, 2005).
49.
Housing Element Working Group, Final Report.
50.
2004Cal Stats. ch. 696, 724.
51.
Meck, Retzlaff, and Schwab, Regional Approaches to Affordable Housing , 51, 57, 64.
52.
California Association of Councils of Government (CALCOG), Regional Growth Concept Paper, 7th discussion draft (Sacramento, CA: CALCOG, March 11, 1999).
53.
Calcog. See http://www.calcog.org .
54.
Senate Committee on Local Government, Housing Element Law: A Summary Report from the Interim Hearing, 42–43.
55.
Governor's Interagency Council of Growth Management, Strategic Growth: Taking Charge of the Future, Report of the Growth Management Council to Governor Wilson (Sacramento, CA: Governor's Office of Planning and Research, January 25, 1993), 32–36, 61–81.
56.
CALCOG, Regional Growth Concept Paper.
57.
Senate Committee on Housing and Land Use, Housing Element Law: A Summary Report from the Special Hearing, 8; CALCOG, Regional Growth Concept Paper; CALCOG, Priority Actions for 2001, Draft 12-11-00 (Sacramento, CA: CALCOG, December 2000); Calcog, Priority Actions for 2004 (Sacramento, CA: CALCOG, November 18, 2003), 2.
58.
Ch. 52, § 2240-112-0001, Provision 1, Ch. 665 (AB 2054), and Ch. 80 (AB 2864), Torlakson, Stats. 2000. For the subsequent report, see HCD, California's Inter-regional Partnership Program: Jobs, Housing, and Mobility Strategies (Sacramento, CA: HCD, June 2005).
59.
Payne, “Paradox of Progress,” 131–32.
60.
Cal. Gov. Code Sec. 65580 et seq.
61.
Ibid.
62.
Senate Committee on Local Government, Housing Element Law: A Summary Report from the Interim Hearing, 78.
63.
Meck, Retzlaff, and Schwab , Regional Approaches to Affordable Housing, 45–67.
64.
HCD has been slow to devise specific forms for localities to fill out but has consulted with them extensively, finally coming up with a finished product. See HCD, Initial Statement of Reasons (ISOR), Proposed Adoption of Title 25 Division 1 Chapter 6.5 Subchapter 2 Housing Element Annual Progress Reports Sections 6200, 6201, 6202, and 6203 (Sacramento, CA: HCD, January 19, 2007).
65.
HCD, Status of the Housing Elements in California, 2005 Report to the Legislature (Sacramento, CA: HCD, May 2006).
66.
An anonymous reviewer of an earlier draft suggested the obfuscation ploy, and it might be resorted to in one or more of California's many regions.
