Building a house in California is not a housing development project [pdf]
courts.ca.gov
courts.ca.gov
The judge interpreted the HAA as only applying to units that expand housing beyond single family homes.
The proposed project would be a 4000 square foot single family home in a neighborhood of roughly 1500-1600 square foot homes.
Either way I think the law is absurd here, but it's actually having the INTENDED affect.
Rather than building a luxurious single family home, the developer is encouraged to build a multi family home and actually expand the amount of housing available in the area.
This seems like a "win" if your goal is to increase housing supply.
The property here is a hillside 1.76 acre lot in a "heavily wooded" area of Marin County next to a creek and currently without vehicular access. No one is ever going to build a multi-family development there.
These are very broad classifications that mostly serve to provide pretext for rejecting projects or exacting fees. In San Francisco a protected tree is any tree with a diameter of 15" or more (specifically, a circumference of 48" or more). It'll cost you upwards of $500 in mandatory permits and fees alone to remove any (and each) such tree, even if it's a foregone conclusion that it needs to be removed. And if you remove it without spending the money and time on the permit, you'll face thousands of dollars in fines.
The whole system is fscked up. Whether it was proper, legal, or otherwise for that "mansion" to be built, I have no opinion. But the existing regulations and permitting systems in California are wholly ridiculous; clearly, directly, and unequivocally responsible for an immense amount of social problems, including social inequities in this state; and outside a court of law, and without more context, deserve little deference regarding legitimacy and efficacy.
In fact, the system has the overall effect of injuring rule of law by making it difficult, not to mention often times economically infeasible, to obey the letter of the law. It turns the community into scofflaws. If the law and law-abiding community is the only thing protecting a resource, then it's of paramount importance to maintain the legitimacy of and respect for the law, even if that means sometimes making sacrifices and compromises regarding what you would like to accomplish with the law.
Also, I just realized that I was quoting from the South San Francisco Code. https://library.qcode.us/lib/south_san_francisco_ca/pub/muni...
Edit: SF Code is less strict than South SF or Marin. SF has "significant" and "landmark" trees. The former is 12" diameter or greater and within 10 feet of a public right of way. The latter is by individual designation only, AFAICT. See https://codelibrary.amlegal.com/codes/san_francisco/latest/s... and https://codelibrary.amlegal.com/codes/san_francisco/latest/s...
48" circumference / 15" diameter could be 15-20 years old, if not younger, for some commonly planted trees. The horrible strawberry tree planted at my curb by the previous homeowner couldn't be much older than about 15 years (they bought the house circa 2007), and it's already close to that diameter even though it's categorized as a slow grower. The trunk splits just above chest height, giving it an advantage by that metric relative to how it grows in the wild, but that probably wasn't an accident. (I couldn't find a proper growth factor number, perhaps because the growth rate of the trunk isn't uniform through its life?) It's a common tree in San Francisco as it is (or at least was) a favorite of the Friends of the Urban Forest, but it creates too much detritus and is now disfavored by the city. Fast growing species of maple and cottonwood are especially common out in the suburbs.
..."nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
https://law.justia.com/constitution/us/amendment-05/16-just-...
"A taking can come in two forms. The taking may be physical, which means that the government literally takes the property from its owner). Or the taking may be constructive (also called a regulatory taking), which means that the government restricts the owner's rights so much that the governmental action becomes the functional equivalent of a physical seizure. "
The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled.
It looks like it's intended to allow for the construction of everything, not just affordable and accessible housing.
https://leginfo.legislature.ca.gov/faces/codes_displaySectio...
They are not stupid -- they just took a "calculated" risk that they could pull this off.
I guarantee if they consulted a lawyer beforehand they would have been told there was very high risk of rejection of the plan.
This is just their "Hail Mary" attempt at still being able to get what they want and preserve / protect their risky investment choice.
Interestingly, the court left open the question of whether a project comprising a single-family home plus ADU would fall under the Housing Accountability Act. If the owners are still feeling litigious they may be able to file their original project proposal (5,000 sf. with ADU), get denied, sue the county again, and possibly get a different result.
[1] https://www.e-flux.com/architecture/housing/333702/standoff-...
https://www.hcd.ca.gov/docs/planning-and-community-developme...
hardly a "development", more like a single home build
like, did their definition match the one you referenced that includes a single home?
Now a court in one of the most-NIMBY counties in California has effectively gutted the law.
Build
Absolutely
Nothing
Anywhere
Near
Anything
If housing is an investment it means either demand went up (population growth), or supply did not go up (housing wasn't built).
I suspect that if you measure housing price adjusted for inflation per capita, you would get a measure of housing supply.
The fact that house owning individuals financially gain from limiting housing supply is, to me, the defining feature of class warfare, even if people don't think they are participating in it.
I think this is the basis for the statement "housing can either be affordable or an investment, but not both." Housing can either be in adequate supply (affordable) or limited (an investment).
The same people, of course, who have a 5-person verizon or tmobile LTE family plan and spend a huge proportion of their waking life glued to their iphone or android phone.
In particular given the amendment to the law in 2017 which added, among other things, these clauses:
> It is the policy of the state that [the HAA] should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.
and
> despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels, including this section
Both of these quotations are very clearly statements of "fuck you courts, follow the law", which the court has summarily ignored, stating that even though it is routine for statutes to be interpreted in such a manner that singular nouns include plurals and plural nouns include the singular, that the statement "only residential units" does not include building a residential unit and nothing else.
This is very classic for Californian courts and for Ninth Circuit.
The ability for a city to approve or deny SFHs will have no impact on the housing situation in the state.
Also the intent of the HAA is spelled out in the HAA itself, and it explicitly states that it is for "all economic segments":
The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters. That intent has not been fulfilled.
https://leginfo.legislature.ca.gov/faces/codes_displaySectio...
They're called "vacancy chains" in that world, but yes, they're real.
Otherwise you’re arguing that x + 1 == x.
A friend of mine just bought a brand new BMW. He's going to sell his old Nissan. Whomever buys that Nissan will be buying their first car, or selling their old car. The market is interconnected and conditions at one end of it absolutely affect the other end.
Just look at the price of used cars last year when the new car stock was strangled. Imagine if, before that happened, someone was arguing that "making a luxury car doesn't increase the supply of cars"
"Housing Project" is really looking for a larger impact to the market than one home, usually 8+ likely dozens of homes.
A single house is just a house, not a "housing project". Thus, they shouldn't get beneficial tax breaks to build it.
It then goes into the fact that the law in question refers to a "housing development project" in one of 3 ways, 2 of which definitely don't apply, leaving behind the phrase "Residential units only", which they then point "units" is plural, not singular.
So perhaps.. 2 residential units would have been a housing development project.
Some well-to-do NIMBYists who own fully detached homes wanted to prevent some other well-to-do from building, in their neighborhood, a bigger house than theirs (while butchering the natural landscape and harming the environment). They prevailed.
The builder tried to argue that their home is a housing project, and so legally protected from cancellation by NIMBYists under some legislation known as the HAA. There was subsequently a lot of elaborate squabbling over the wording of the law, and whether plurals like "units" include projects that build one "unit". The legislation was found to be lacking in clear definitions of its terms. In the end it was decided that one home isn't a housing project.
They set the precedent that someone building an an actual affordable home in all earnestness can now be stopped by NIMBYists, if it happens to be just one unit. If you build affordable housing, you must build two or more to stay within the protection of the HAA.
(It doesn't seem like a big deal since you'd think most housing projects subdivide an expensive property into a beehive of tiny cells anyway. You can see some NIMBYs using this to stop the construction of, say, a lane home on the property of an existing house. However, the joke will be on them if the builder decides to make a larger "lane duplex" instead.)
Law is not a computer program. It's interpreted by human lawyers and judges. It's not a system of rules.
This sort of behavior falls under a broad set of rules about conspiracy, fraud, and similar. If that logic applied, I could apply for a permit to build an aesthetically-pleasing house, and run out of funds before the landscaping and exterior decoration were finished, and build slum housing. Fortunately, it doesn't work like that.
> As originally enacted, the statutory definition provided that “housing development project” meant “a use consisting of either of the following: [¶] (A) Residential units only.
...
> This matters because unless we know the full meaning of “housing development project,” it is difficult to evaluate the parties’ central dispute: whether the plural term “residential units” includes the singular “residential unit.”
can the developer here build more houses on the plot? seems like that would provide more housing.
But I have to guess that if you were approved to build 3 houses, and stopped after building 1, these neighbors aren't going submit complaints to the county to try to compel you to build the other 2.
He built the mother in law suite, moved in, and the rest of the house has been "under construction" forever.
Seems the sort of thing where you're threading multiple loopholes and need to do it exactly right, which is probably not cheap or easy either.
My dad's house has been "under construction" for nearly 20 years now. They just sent him a notice about a year after he started saying the tax value was being adjusted and if he wanted to dispute that he could ask for a hearing.
Same thing with my house, I've been "under construction" since late 2019. Got my new notice of property value sometime in 2020. There is no inspection process for the improvements, so I'm "under construction" until 2024.
Also if I had to guess he isn't really "threading multiple loopholes". He probably just applies for a construction permit renewal every time it comes up. The place he built really isn't an eyesore, more of a nice little bungalow. I doubt he intentionally pisses off his neighbors. So the city planning and permitting folks likely just collect the fees and move on.
It seems to me that California is unique. It has some of the best weather and natural beauty in the world. Infinite demand to live there. It’s always going to have a housing shortage.
(Not that you couldn't greatly improve the place with Barcelona or Paris style density! I agree the low-hanging fruit is absurd)
I’d say before building skyscrapers in existing neighborhoods, California could dismantle highways and build them there instead. Then you get a win-win of more housing and fewer SUVs and trucks.
It is perfectly fine to regulate the acceptable parameters of development, but they can't subjective and arbitrary. That's not how rule of law works.
The problem with NIMBY absolutists is obvious -- it becomes impossible to expand the housing supply in areas that need expansion.
The problem with YIMBY absolutists is also obvious -- it's probably not ideal to build a 30 story condo tower in the middle of a neighborhood of single family homes.
(Though, arguably a 30 story condo tower is better than a housing crisis, but the Strong Towns proposal is geared towards never letting a housing crisis happen in the first place)
The Strong Towns compromise is that it should always be legal to build the next increment of housing stock relative to whatever is the most common in the area. Where the increments are defined something like: single family -> duplex/triplex -> row house -> low rise apartments -> mid rise apartments -> high rise apartments. In a neighborhood with a majority of housing stock at one level, it should always be legal to build the next level.
The idea is that it allows neighborhoods to "thicken up" over a few decades.
This solves basically nothing because if there were pure market forces most of America's cities. would have ceased to be SFH long ago. Slow conversion into duplexes simultaneous pisses off the NIMBYs and doesn't really help add supply in any great deal.
The evening news quote for this would be something like "if it were up to us, we'd build the new high rise today. But the city requires us to build several buildings, have people move in, evict them, then demolish that & start over. Something has to change with this process"
https://www.washingtonpost.com/business/what-happened-when-m...
> Minneapolis had 425,336 residents as of mid-2021, the Census Bureau estimates, and 199,143 housing units as of April 2020. By my count the end of single-family zoning has so far allowed for the permitting of at most 97 new units (the above table shows numbers of buildings, not units), some of which haven’t been built yet. If things continue at this pace, ending single-family zoning will have increased the city’s housing supply by just 1% by 2040.
For a single family home, the footprint can't take up more than 50% of the lot. For a duplex, the footprint can't take up more than 60% of the lot. Duplex and triplex projects could be made much more compelling by loosening these restrictions.
https://minneapolis2040.com/media/1816/built-form-districts-...
That's just not true! People would do that in the neighborhood I live in now in Los Angeles if they could because it would allow you to make the same piece of real estate about 1.5x times as valuable.
More interestingly, in Piedmont California where I grew up, there is a lot of controversy about this. That's an area that is very desirable -- great schools, pretty, close to San Francisco -- but also really expensive. Because its been a nice area for a long time many houses are on huge lots or even have servant's houses (!) that can be built up into a pretty nice house. Of course a lot of the neighborhood hates the idea of converting a single family lot into two homes even under these posh circumstances. But the economic incentives are powerful. I see it happening on my parent very fancy street.
PS: One of the things that really bugs me (in my neighborhood and where I grew up) is when home owners argue about preserving the local character. I grew up in city where my mom and grandmother grew up. The house I grew up in was an adjacent piece of land that once had a single house. Now the neighbors would freak out if you took these large plots of land and built two houses on them or god forbid a duplex. But the truth is they haven't lived their that long and if they did they would know that the neighborhood has always been changing. I wish they could make peace with that.
One will see if the backyard ADU end up in a similar situation over time or if the larger "main unit" gives them more value. With duplexes where both units are rentals, there's also probably a bit of a "neither of these are receiving significant owner upgrades" factor compared to an owner-occupied home.
Twice as much housing is a lot more housing.
Now when her kids inherit the home & sell it to a developer, sure it'll happen then. But that is a slow, generational process.
I mean, I'm all for trying it, but we probably should have done it 30 years ago since the rent is too damn high now.
The part I wonder about are provisions for mixed use. At some point some business should be allowed. I think Japanese zoning has a linear system that covers this: https://www.rahulshankar.com/zoning-in-japan/
The Strong Towns approach is not really a solution for SF -- it's an approach to prevent the predicament from forming in the first place. Cities that are on the verge of becoming the next SF (Seattle, Portland, Austin) should take heed.
But do what you describe as “YIMBY absolutists” actually exist? Maybe they do, but from my perspective I don’t really see anyone arguing that everything should be buildable everywhere.
This. It means, if you don't want your precious quality of life messed up, be nicer to all those other people you normally think you don't have to give a shit about.
If there wasn't a mass of people with no good jobs or housing, then there wouldn't be an ugly tower being built in your back yard. If your neighbor had his own food, he wouldn't need to steal yours, and you wouldn't have to live within your own private prison.
Very few people suggest this seriously, and in any case allowing for this in the market, it's unlikely any developer would do that. Skyscrapers make sense when the land there is particularly in demand, above and beyond what you're likely to find in a SFH neighborhood (unless it's some grandfathered-in area of Manhattan).
You mean because then it would be in their back yard? Or why?
Perhaps you'd authorize that kind of development under condition of adding sime more infra to support the additional residents, but in itself getting a tower of residents doesn't look like an issue.
Further, no one bought and built a 7 bedroom and 9 bath room home on an acre lot to live next to a few hundred people. It’s utterly irrational and illogical.
It completely denies the role of status seeking behaviour in our societies which is a human universal. We need wealthy people enjoying all the trappings of wealth and feel special about their status because it is them who are subsidizing the vast majority of the rest of the population. If you don’t reward the golden goose, no free golden egg. Fight the right battle.
I've seen some really beautiful homes out in the country as well, but they aren't that practical unless you are retired.
I suppose I would take the above proposal over the status quo if it truly eliminated local control - but otherwise seems like a very long time for a neighborhood to upzone. Its almost never going to be economical to tear down a SFH and build a triplex unless the SFH is in disrepair - which may be after 50 years from initial construction in most cases.
Which doesn't seem a bad idea.. but where does the level of employment and services factor into this? If an area expands economically, you're going to need to expand housing options, regardless of what was traditionally there.. if the area does not produce a lot of economic activity, then allowing more low density housing is ostensibly not a problem.
For areas that don't have a lot of economic activity, I think very few homeowners will go through the expense of converting their properties because they won't be able to make the money back on rent. In those areas it would be more efficient to build new SFHs on vacant lots.
Either way, with byzantine zoning rules out of the picture, the pricing and incentives to build, sell, or rent will match the local area much better.
But a lot of cities are so far behind that they need a lot more very quickly. You need more radical rezoning to actually help people soon for that.
Of course, the most likely outcome is politicians hemming and hawing some more, putting forth grossly inadequate solutions, and passing the buck to the next generation, as is tradition.
Duplex gives almost no advantage in housing density, but adds more complications due to shared parts of constructions.
Current residents have private property rights too. Both sides arguing in defense of their rights under the law is exactly how our “rule of law” works.
Rule of law does not give you special say over these proceedings. Clearly for good reason; you seem keen to rush ahead without considering the rights of others with an established investment under law. When you can’t you’ll call everyone else arbitrary even though an established process and precedent were utilized.
Private property creates subjective use of property. What objective social good is coming from private monopoly and erosion of local ecology?
You see arbitrariness but relative to me I see a subjective perspective.
Y’all should really sit and meditate on how flimsy and quickly inverted human language semantics are.
The person seeking to build the house has an objective of subjective behavior that impacts others. You don’t exist in the vacuum you can conjure in your head.
One definition of ownership I like is “can you freely destroy it without legal consequences?”.
Even “your” body: there are many laws about what you may and may not do with it (alive and dead).
There is even a grey area for whether you own your own thoughts? Maybe you rationally believe you can believe whatever you like, but actually your thoughts bleed through subconsciously into your actions which can have severe consequences. And unless you brought yourself up without human contact, it is very hard to discern the boundary between your own beliefs and those that belong to your society.
I have a hard time reconciling this. Because I also can’t help but think local governments deciding what they want for their neighborhood is the most direct form of democracy and overriding that at higher levels of government seems to be not ideal. Given that we agree that some level of laws and regulations must exist, it seems that we’re just adjusting our goal posts. If you’re a property my rights absolutist then you have to also accept edge cases, like Trump flags and 4x4s tearing through someone’s backyard, or someone painting their house in pink stripes since it’s “their house”. What kind of NIMBY are you to deny someone selling their home to someone who wants to open an auto repair shop? You have to accept these the same as you accept a new condo tower. You can’t pick and choose here and then go back and claim “well this is reasonable and this other thing is not” because people can equally claim a condo tower isn’t reasonable. In the case of particularly desirable places I think it’s just a case of too bad, that’s life. Nobody is entitled to live anywhere in particular at an affordable rate regardless of their priors. The alternative that you would believe this is the case means someone can endlessly complain that they can’t live in Vancouver with a view of the sea for $500/month.
Now on the more reasonable spectrum you can ok I’m not talking about all of that, I’m talking about a new high-rise in a downtown area. Sure, and that’s more likely to actually happen to so I’m not sure what the problem is.
“But teachers and wage workers will be priced out”. Yep. And either wages will rise and residents will be paying $70 for a latte, or they won’t get to have those things because of their anti-development NIMBY points of view and they’ll either accept that life or they’ll give in to change.
At the end of the day it’s all arbitrary and subjective. I think it’s arbitrary that we build highways for cars and subjectively believe that it’s a huge waste of money. That’s messy democracy.
Also transit systems may be required. I imagine a place with truly no zoning laws and a transit system would have a lot of development near stops
California sure has a lot of problems as well but people who live in glass houses shouldn't throw stones.
But this is beyond the point: none of this have anything to do with the topic of conversation, that is, zoning and urban planning. The truth of the matter is that, despite the Houston being widely panned for this on HN, people nevertheless flock into there en masse.
Surprise! The libertarian dream of free market property rights and doing whatever you want doesn't really exist in many ways, such as, randomly chosen:
a) you need a drivers license to operate a car on public roads
b) if you build a new house or office building, its electrical wiring needs to be done by a licensed/bonded contractor and meets standards of your local city or county electrical inspection and the NEC
c) if you build gas lines in the same place it also gets inspected and needs to meet certain standards
d) that new toyota you bought from the local dealer is subject to a whole host of federal vehicle safety regulations before its manufacturer is allowed to sell in the the usa
e) the entire electrical grid in your area is likely regulated by some state and federal level entities that have an interest in it not falling over on its face, like the texas-regulated energy grid during their major winter storm event a while back.
f) the burger you ate for lunch came from a local food-health/safety inspected restaurant and the beef from a supplier that's also subject to regulations and inspection
g) no, just because you own the land doesn't mean you can start a leather tannery or fat rendering/reduction industrial operation on a small scale in your suburban house's back yard, stinking up the neighbors.
I could go on...
b) Again, these are statewide and nationwide standards that are not subject to local administrative bodies' whims. If your wiring meets standard, you're allowed to do it. You don't have to apply to the county and have them decide that the rest of the neighborhood uses Romex, so your MC armored cable won't "fit".
c) Again, these are uniform standards. No subjectivity or rigourous meetings required for each installatino
d) See my responses above. All manufacturers are playing on the same field, and don't have to get permission for every single aesthetic change. If Toyota decides they're offering fuchsia as a color option next year, then can just do that. So long as the clearly-defined standards are met.
e) See my responses above
f) But the county doesn't get to dictate which ingredients can be paired together. If my local hipster burger joint wants to offer a peanut butter and sardines burger, they can just do that. No government review required on how tasty it will be.
g) Agreed! Free market ideologies are not the same as anarchism, but many people on seem to conflate the two. For a market to be free, there needs to be a minimum of information asymmetry and a minimum of uncertainty. All participants should ideally know the rules of the game as they enter. If I buy a property, I should have full confidence that I can build A or B or C, and also be clear that X, Y, or Z will be prohibited.
A free market doesn't mean an unfettered one. It just means that pricing is transparent, rules are objective (and known!), and the so called "playing field" is level. There are a minimum of case-by-case decisions, or rules that favor one class over another.
"... these statutes do not resolve the meaning of the unhyphenated phrase “housing development project.” As their broad definitions suggest, the phrase could use development as a verbal adjective and mean a project to develop housing (a housing “development project”). On the other hand, the phrase could use development as a concrete noun and mean a project to build a housing development (a “housing-development” project), a concept these statutes do not define. Under the first interpretation, a project to build a single home would seemingly qualify as a housing development project, because it is a “project undertaken for the purpose of development” (§ 65928) and the development activity consists of constructing housing. Under the second interpretation, the same project would seemingly not qualify as a housing development project, since an individual single-family home is not a “housing development,” a term that generally refers to a group of housing units. ... Given the statutory context in which the definition of “housing development project” appears and the legislative history, we hold that the HAA does not apply to projects to build individual single-family homes."