The State of California is on the verge of mandating that San Bernardino County’s 24 cities must moderate their zoning and development codes to allow the construction industry to build 162,145 housing units within their collective confines over the eight years beginning in 2021. The majority of those new dwellings are to be priced at what is defined as “affordable” rates, that is, within the buying power of those with very low, low and moderate incomes. The balance of the units to be built are intended for purchase or rent by those with “above moderate income.”
The dictates from Sacramento mean that local governments throughout San Bernardino County and the larger area of Southern California as a whole will lose a significant degree of their traditional purview over land use policy.
There has been a trend toward an overarching regional and statewide control of development regulation, in particular residential development regulation, for some time. The regional housing needs assessment, known by its acronym RHNA, is a requirement of California housing law and is a process that determines projected and existing housing need for all jurisdictions, including cities and unincorporated county land, in California. The process to determine a regional housing needs assessment allocation is conducted by a council of governments, such as the Southern California Association of Governments, every eight years. Every jurisdiction must plan for its regional housing needs assessment allocation in the housing element of its general plan by ensuring there are enough sites together with zoning to accommodate its regional housing needs assessment allocation. Many jurisdictions use the housing element as an opportunity to complement their economic development, open space, and sustainability goals with its housing goals. Once updated, housing elements are reviewed by the California Department of Housing and Community Development (HCD) and must be adopted by the jurisdiction. The most recent regional housing needs assessment allocation for the Southern California Association of Governments region, its fifth cycle regional housing needs assessment, was adopted in October 2012 and covers the housing element planning period October 2013 to October 2021. The sixth cycle allocation, which will cover the planning period October 2021 through October 2029, will be adopted in October 2020.
In January, Governor Gavin Newsom signed an executive order to create an inventory of surplus state lands where affordable housing might be built.
On August 22, 2019, within the context of the planning toward the sixth cycle of the regional housing needs assessment, the California Department of Housing and Community Development submitted to Southern California Association of Governments (SCAG) its mandate that in the six of Southern California’s counties for which SCAG is the regional planning authority – Imperial, Los Angeles, Orange, Riverside, San Bernardino and Ventura – 1,341,827 housing units must be built over the eight-year period between 2021 and 2029.
In a letter of protest dated September 18, 2019 to Doug McCauley, the acting director of the California Department of Housing & Community Development, Kome Ajise, the executive director of the Southern California Association of Governments, put on record his association’s “formal objection to the California Department of Housing & Community Development’s regional housing need determination.”
Ajise noted that the Southern California Association of Governments “is fully aware that the State of California is in the midst of a housing crisis and that resolving this crisis requires strong partnerships with state, regional and local entities in addition to private and non-profit sectors. As such, SCAG (the Southern California Association of Governments) desires to be an active and constructive partner with the State and HCD (the Department of Housing & Community Development) on solving our current housing crisis, and this objection should not suggest otherwise. We are in fact currently setting up a housing program that will assist our local jurisdictions on activities and policies that will lead to actual housing unit construction.”
Nevertheless, Ajise wrote, “One of our major concerns is that HCD did not base its determination on the Southern California Association of Governments’ Regional Transportation Plan/Sustainable Communities Strategy Growth Forecast, which was inconsistent with Government Code 65584.01(c)(2)(A). Another major concern is that pursuant to Government Code 65584.01(c) (2) (B), the Department of Housing & Community Development’s determination of housing need in the Southern California Association of Governments region is not a reasonable application of the methodology and assumptions described in statute. Specifically, the Department of Housing & Community Development compared household overcrowding and cost burden rates in the Southern California Association of Governments region to national averages rather than to rates in comparable regions as statutorily required. The Department of Housing & Community Development seemingly uses unrealistic comparison points to evaluate healthy market vacancy, which is also an unreasonable application of the methodology and assumptions.”
While the Southern California Association of Governments disputed the methodology the state used in deriving its numbers, it pointedly did not contest the state’s authority to override the local agencies’ autonomy in setting their own development regulations, zoning standards and population saturation levels. Nor did the association contradict the overarching need to make the population increase provisions set forth by the state.
“I would like to note that SCAG’s objection focuses on the process and adherence to state housing law requirements and not necessarily to the regional housing need determination number,” Ajise wrote. “The ultimate aim of this objection, as discussed at length by the regional council, is to ensure the most technically and legally credible basis for a regional determination so that the 197 local jurisdictions in the Southern California Association of Governments region can approach the difficult task of zoning to accommodate regional needs with the backing of the most robust and realistic target that is possible.”
On October 9, Governor Gavin Newsom signed 18 bills intended to deal with housing needs in California, including ones his office said were “designed to help jumpstart housing production.” The bills signed included Senate Bill 330, legislation aimed at removing local barriers to housing construction to speed up new development by simplifying permitting and approval processes, ensuring no net loss in zoning capacity and limiting fees after projects are approved, along with Assembly Bill 1763, which creates more affordable housing by giving 100 percent affordable housing developments an enhanced density bonus to encourage development, and Assembly Bill 1485, which further streamlines environmental law and encourages moderate-income housing production. The provisions contained within those several pieces of legislation eradicate limits on residential density; provide developers of affordable housing so-called “bonus units,” meaning they can exceed the number of units per acre many cities impose on housing projects; force cities to permit garages and carports to be converted, or demolished, to accommodate accessory dwelling units sometimes known as “granny flats”; and limiting the amount of parking spaces a city can require when approving residential developments.
In this way, the discretion that local jurisdictions formally had in controlling what is to be built within those communities has been in large measure compromised.
San Bernardino County’s cities have each been consigned to building a given number of housing units in their jurisdictions that are yet to be precisely determined, but for which tentative numbers have already been projected. Those final numbers are subject to the methodology by which they were derived being ratified by the SCAG Board, any forthcoming appeals and acceptance by the State of California.
In practical terms, based upon the tentative numbers that have been set forth, all of San Bernardino County is being mandated to absorb the construction of slightly more than 12 percent of the 1,341,827 units the state is calling upon the six counties the Southern California Association of Governments oversees to accommodate. The 162,145 units have been apportioned, under the tentative schedule yet to be approved by the Southern California Association of Government Board, as follows:
In Adelanto a total 7,198 units are to be built with 765 units for those of very low income, 1,093 for those of low income, 1,249 for those of moderate income, and 4,091 for those of above moderate income.
In Apple Valley, a total of 7,523 units are to be built, with 1,927 units built to house those of very low income, 1,058 to house those with low income, 1,309 for those with a moderate income, and 3,229 for those with above moderate income.
In Barstow, a total of 2,735 units are to be built, including 314 for those with very low income, 413 for those in the low income category, 540 for residents with moderate incomes and 1,468 units for those with above moderate income.
In Big Bear a total of 426 units are to be built, with 100 of those priced to be affordable for those with very low income, 66 for those qualifying as low income residents, 75 for those with moderate income, and 185 for those of above moderate income.
Chino is being called upon to build a total of 8,361 housing units, 2,560 for those within the very low income category, 1,545 for those cataloged as low income, 1,438 for those of moderate income, and 2,819 to house those of moderate income.
Chino Hills must build 4,039 units overall, including 1,516 for those of very low income, 890 for low income inhabitants, 850 for those of moderate income, and 783 for buyers having an above moderate income.
In Colton a total 5,415 units are to be built, 1,330 for those at a very low income level, 670 for those of low income, 903 for those able to boast a moderate income, and 2,512 to be sold to those at above moderate income.
Fontana is to allow the construction of 22,101 units, 6,522 affordable to those with a very low income, 3,738 to those of low income, 3,822 to those of moderate income and 8,019 for those of above moderate income.
Grand Terrace must see 808 units built within its 3.5 square mile, 12,700 population city, 244 for those of very low income, 118 for those of low income 136 for those with moderate income, and 310 for those with an above moderate income.
Hesperia is to allow a total of 15,793 units within its 73.21-square mile confines, with 3,769 for those of very low income, 2,389 for those of low income, 2,727 for those of moderate income and 6,899 for those with above moderate income.
In Highland, a total of 4,087 units are to be built, 1021 for those with very low income, 670 for those of low income, 767 for those of moderate income, and 1,639 with above moderate income.
In Loma Linda 2,280 units are to be built, so that 588 will be affordable to those with very low income, 348 for those of low income, 391 for those of moderate income, and 953 for those of above moderate income.
In Montclair, a total 1,688 units are to be built, 460 for those of very low income, 251 for those of low income, 260 for those of moderate income, and 718 for those of above moderate income.
In Needles, a total of 160 units are mandated to be built, 17 reserved for those of very low income, 18 for those of low income, 30 for those with a moderate income, and 94 for those with an above moderate income.
In Ontario, a total of 24,478 units are to be built, 6,703 for those of very low income, 3,878 for those of low income, 3,903 for those of moderate income, and 9,994 for those of above moderate income.
In Rancho Cucamonga, the state is calling upon the city to allow 10,501 units to be built in that city from 2021 until 2029, 3,273 of them for those prospective residents with very low income, 1,923 units for those with low income, 2.073 for those with moderate income, and 3,278 for those with above moderate income.
In Redlands, a total 4,487 dwelling units are to be built, 1,248 for those with very low income, 789 for those with low income, 830 for those with moderate income, and 1,620 for those with above moderate income.
In Rialto, a total of 8,251 units are to be built, with 2,240 to house those with very low incomes, 1,209 for those with low income, 1,366 for those of moderate income, and 3,436 for those with above moderate income.
In San Bernardino, the county seat, a total of 8,104 homes of one type or another are to be built, so that 1,432 are affordable to those living on a very low income, 1,103 are within the means of those with a low income, 1,446 for those of moderate income, and 4,123 for those with an above moderate income.
In Twentynine Palms, a total of 2,066 units are to be constructed, 460 for those of very low income, 252 for those of low income, 364 for moderate income homebuyers and 990 for those with an above moderate income.
In Upland, a total of 6,456 dwellings are to be built, with 1,820 for very low income buyers or renters, 1,093 for those of low income, 1,148 for those falling in the moderate income category, and 2,395 for those with an above moderate income.
In Victorville, a total of 16,216 units are to be built, 3,493 of them for those with a very low income, 2,271 for those with a low income, 2,987 for those of a moderate income, and 7,465 of those with an above moderate income.
In Yucaipa, a total 4,681 units are to be constructed, of which 1,169 are to house those of very low income, 810 are to be for those with low income, 833 are for those in the moderate income bracket, and 1,869 are to be home to those of an above moderate income.
In Yucca Valley, a total of 1,489 units are to be built, 311 slated for those of very low income, 332 for those of low income, 288 for moderate income renters or buyers, and 658 for those of above moderate income.
While one of the planning principles the Southern California Association of Governments has sought to incorporate into its determination of where residential growth within its jurisdiction should occur is proximity to mass transit availability as well as employment opportunities, that standard did not consistently make its way into the mandates set down by the state. This is disconcerting to many advocates of planned and organized growth.
Many developmental interests, including members of the building and real estate industries, property owners, land speculators and financiers are applauding the recent passage of legislation intended to facilitate residential development, in no small measure because it deregulates development to a considerable degree and greatly decreases the limitations that local officials can impose on the proponents of residential development projects. Conversely, those long concerned about the ravages of unbridled development, leapfrog development, overcrowding and the strain on already overburdened infrastructure consider the new laws to be antithetical to the concept of ordered and controlled growth.
The Town of Apple Valley, for instance, has had for virtually all of its 31 years as an incorporated municipality a policy of permitting single family residential development to occur only on lots of one-half acre or larger. When three members of the town council, David Holman, Barbara Loux and Patrick Jacobo, all of whom had ties to the development community, in 1999 made a push to reduce the town’s standards to allow four residential units to the acre as a prelude to even further density concessions, a counterreaction among town residents resulted in a committee qualifying a recall election against the troika, which succeeded. Placed on the same ballot was Measure N, which mandated that until December 31, 2020 the “existing rural atmosphere and equestrian lifestyle” of Apple Valley would be respected by requiring a vote of the people on any amendment to the single-family residential element of the town’s general plan, thus safeguarding Apple Valley’s tradition of half-acre lots. Measure N also passed. The effort by the State of California to ensure affordable housing is available in Apple Valley led to the town, often reluctantly, approving multi-family developments, almost exclusively in an area on or surrounding California State Route 18 in the area of 34.5315°N 117.2235°W. This district has become crime-ridden, known locally as “felony flats.” As a consequence, there is a determination on the part of Apple Valley officials and a large segment of the town population to resist any further state or federal mandates intensifying land use and residential density in the town.
Precisely what will occur if local officials seek to contest, either legally or procedurally, the imposition of state mandates relating to what have been traditionally local purviews with regard to land use determinations is unknown at this time.
It appears that the State of California and the Southern California Association of Governments are taking a combined carrot and stick approach in seeking to have cities comply with their residential growth projections. Ajise in a report told city and county officials that if their jurisdictions begin to make headway toward achieving compliance with state housing law they will be eligible to receive between $65,000 and $1.5 million, based on population, directly from the state’s Department of Housing and Community Development, funds which can be used to prepare and adopt planning documents and facilitate the process of reaching full compliance with the state housing opportunity creation mandates. Some local officials have scoffed at that, indicating the money being offered is laughingly unequal to the costs complying with the mandates represent.
The 1,341,827 units the state is calling upon Los Angeles, Ventura, Orange, San Bernardino, Riverside and Imperial County to accommodate between 2021 and 2029 is a tentative one, which the Southern California Association of Governments, as the regional planning organization for six counties, will serve to finalize.
The Southern California Association of Government’s regional council will vote on a draft allocation methodology November 7, after which the state will undergo a 60-day review of the methodology, which is based on jobs and transit accessibility, growth, and socio-economic factors. After the full board of directors for the Southern California Association of Governments approves the penultimate draft, it will be submitted to the state, whereupon each city will receive an official mandate with regard to doing its part to redress the state housing shortage.
-Mark Gutglueck