Land use is famously about local controversies. Neighborhood groups, often brandishing long, unwieldy names like “Citizens For A More Responsible” something-or-other, fill up municipal legislative chambers demanding justice; other distinctly local personalities may also emerge into the forefront of the discussion. In addition, land use decisions are often based on a context made up of such fine microscopic detail that it would unproductive or impractical for the state or federal government, both presumably inexpert in those details, to intervene. A local government thus enjoys relatively complete autonomy over how land within its domain is used, subject to only limited requirements issued at the state or federal level.
But one major exception to that general rule is housing. The State of California requires that General Plans contain a set of elements, which lay out a blueprint and policy direction to guide future development. Among those elements, the Housing Element is singled out as special, in that it must be updated every five years in accordance with the Regional Housing Needs Allocation (RHNA). The state Department of Housing and Community Development (HCD) and ABAG will project the number of housing units that the Bay Area will need to accommodate for the next several years, at four income levels (very low, low, moderate, and above moderate), and then will assign a housing share to governments throughout the Bay Area, ensuring that the region, as a whole, meets the required total. Each local government then updates its Housing Element every five years, specifying how it will accommodate its share of the regional housing need. Cities throughout the Bay Area have been engaged in this process this year.
This process ensures that local governments plan to accommodate housing units that are accessible to a range of income levels. Without such a procedure in place, it’s easy to imagine what could happen. Many cities — whose elected officials might simply translate the parochial demands of a local NIMBY group into something resembling legislation — would shirk on their obligation to ensure the production of housing units, particularly affordable units. They might, for instance, amend the zoning code to contain a set of requirements that are a proxy for wealth, ensuring that only affluent citizens can afford to live there. Other cities might freeze growth altogether, thinking only of what will happen within their city limits and ignoring what the effect would be outside. The point is that without a state mandate prohibiting that sort of behavior, it would be difficult or impossible for California to accommodate, in a just and equitable fashion, a population that is projected to increase to 60 million by the year 2050. The state has an enormous interest in ensuring that all of its citizens, of all income levels, are safely housed; but accomplishing this goal requires the cooperation of local governments, who, after all, are empowered to control land use through zoning.
The City of Pleasanton’s Faulty General Plan
So what happens when, despite the state’s requirement, a city tries to shrug off its obligation to accommodate its fair share of housing growth? Then, the State must step in — like it did yesterday, when Attorney General Jerry Brown finally took action against the City of Pleasanton’s housing cap. In 1996, Pleasanton adopted Measure GG, which instituted a housing cap — no more than 29,000 units could be built within the city. Since 2006, the City had already faced lawsuits because of this provision, and in January 2009, Jerry Brown submitted comments (PDF) on the Draft Environmental Impact Report (DEIR) of Pleasanton’s General Plan update. In his comments, Brown indicated quite unambiguously that the housing cap was problematic. Now, in just a dozen pages (PDF), Brown clarifies how the Pleasanton cap violates state housing law. It basically comes down to the numbers. ABAG’s projections require that the City accommodate 3,277 housing units by the year 2014. But the City is only 2,007 units short of reaching the housing cap of 29,000 units. With the cap in place, not even those 3,277 units could not be built — to say nothing of the units that ABAG projections would call for after 2014. And, in fact, the City even still has to make up missing housing units from the last RHNA planning period, which ended in 2007.
The housing cap does not permit any exceptions — for instance, an exception that would allow the City to zone for the 1,270 additional units that would be needed to comply with the current RHNA. By not allowing such an exception, Pleasanton’s housing cap is in direct conflict with the state requirement. The housing cap could be struck down on that basis, but there is still another reason to strike it down. In order for a General Plan to be valid, it must be internally consistent. Pleasanton’s General Plan, however, contains a fatal flaw of inconsistency. The 29,000-unit housing cap is contained in the Land Use Element. The Housing Element, on the other hand, admits that the housing cap is an obstacle that prevents the City from meeting its housing allocation. The Housing Element, in accordance with the RHNA, encourages the production of moderate, low, and very-low income housing units to meet Pleasanton’s need. But that will be difficult to do, so long as the City enforces the 29,000-unit housing cap — particularly since the City is now only 2,007 units shy of maxing out. So the housing cap creates an internal inconsistency that renders the General Plan invalid. Removing the housing cap would, of course, remove the inconsistency, and would also remove the conflict with state law.
The Climate Change Connection
What continues to be interesting here is Jerry Brown’s consistent emphasis on climate change. In this case, Pleasanton’s General Plan just straight-up violates state housing requirements, and the City’s housing cap could be invalidated on that basis alone. Indeed, in his formal challenge of the housing cap, Brown focuses on the state’s Planning and Zoning Law to make the case. In supplementary materials, however, Brown has embraced a policy discussion that goes beyond simply pointing out the literal legal problem. In his January 2009 comments on the General Plan DEIR, he criticized the City for not adequately considering the climate change impacts of the Plan. (Amazingly, the City had claimed that a 46% increase in vehicle miles traveled was an insignificant impact!) This is an environmental issue, not a housing issue. More recently, Brown explicitly tied the housing cap to its effect on travel patterns and air quality — adding his voice to the chorus chanting about how focused growth and smart land use patterns are a critical component of reducing greenhouse gas emissions.
|Interstate 580 through the Tri-Valley, one of the Bay Area’s most
congested freeways, is surrounded by suburban sprawl.
Photo courtesy of Flickr user Michael Patrick.
It’s a classic example of what we observed in the beginning — a city, unless subject to an overarching regional or state mandate, will likely prioritize local parochial interests above the greater good. Pleasanton instituted a housing cap while thinking only about the perceived desirable effect it would have within the city limits — but it did not account for the effects of that cap on the greater region. Within about a decade, the number of jobs in Pleasanton almost doubled, reaching about 58,110 employees in 2005; that number has since grown to 61,100 jobs. But while Pleasanton has cleared space for this job growth, it has not kept up with making space for housing growth. As a result, ABAG found that in 2005, 79% of Pleasanton’s workforce lived outside the city limit, and a full 50% of the workforce endured long commutes from outside the Tri-Valley area. The City planned to continue allowing more office and commercial development, so that by 2025, Pleasanton was projected to nearly double its workforce once again, to 105,000 jobs. But all the while, the housing cap would be maintained, essentially freezing the population at about 78,200 residents for the rest of time. By not providing sufficient housing that would allow people who work in Pleasanton to also live there, the city is essentially forcing long, single-occupancy vehicle commutes — increasing emissions, adding more cars to extremely congested stretches of freeway, and pushing the region further into nonattainment. Pleasanton’s annual carbon dioxide output, which was 1.388 million tons in 2008, would increase to 1.940 million tons by 2025 if the housing cap were to be maintained. The housing cap would also prevent Pleasanton from developing vacant land near its BART station as densely as it should. Restricting growth near BART would diminish the value of this valuable asset, and it would prevent growth in the one place in Pleasanton where it makes the most sense. The housing cap, a purely local requirement, thus carries with it regionally detrimental externalities.
In this sense, Brown’s challenge — although grounded in housing requirements, rather than environmental requirements — may nonetheless be seen as the latest in a string of events that indicate Brown’s stance on the climate change crisis. AB 32 requires that emissions in California be reduced to 1990 levels by 2020; but in the absence of the anticipated panoply of regulations from the Air Resources Board, which will translate AB 32’s broad requirements into more focused action, cities and counties have been uncertain as to what their exact obligations are. Despite (or perhaps because of) that uncertainty, Brown has made it clear on numerous occasions that local and regional governments may not simply ignore the adverse impacts their actions could have on air quality — such as in 2007, when he scolded San Bernardino County, and also last year, when he scolded the Bay Area’s own MTC. And now, with this latest lawsuit against the City of Pleasanton, Brown reminds us of the spirit underlying SB 375, by putting on display the interplay between housing, transportation, and climate change. It is so refreshing to see that someone in our government gets it.