YIMBYs Sue for Even More Housing Via RHNA

The cry for more homes comes as many Bay Area cities say their housing allocations are already too high.

Think getting the Bay Area to build 441,000 homes in 10 years is a tall order? Two San Francisco activist groups are hoping to make that number closer to 580,000. 

Today YIMBY Action and YIMBY Law are filing suit against the state’s department of Housing and Community Development (HCD), alleging that the agency botched its methodology when it comes to the Bay Area’s Regional Housing Needs Allocation (RHNA), the process by which the state pushes cities to plan for new housing. (You can read more about the ins and outs of this acronym-heavy urban planning process here.)

The YIMBY groups say that the Bay Area’s housing allocation from the state for the 2023-31 RHNA cycle does not adequately account for jobs/housing balance — the ratio between the number of new jobs added and new homes built over a given time period — leading to an artificially low number. (The acronym YIMBY, or “Yes in My Backyard,” is an inversion of NIMBY, or “Not in My Backyard.”)

“We were deeply disappointed that HCD decided that they were really not going to put forward the kinds of numbers that are needed to actually turn the corner and end this crisis,” says Laura Foote, executive director of YIMBY Action. “The state legislature is very clear, we need to have a jobs/housing balance.”

The lawsuit comes just two weeks after the Association of Bay Area Governments (ABAG) “adopted” the state’s RHNA number of 441,000, angering many city governments and activist groups in the process. The YIMBYs’ lawsuit will likely be just the opening act in a multifaceted urban planning drama that will play out over the next two years, with various factions arguing about housing allocations being too high, too low, or ending up in inappropriate areas. 

Double Standard? 

The YIMBY groups are basing their suit on a study by the UCLA Lewis Center for Regional Studies, which found that HCD undershot the Bay Area’s housing allocation by as many as 245,000 homes. The lawsuit specifically highlights the jobs/housing imbalance, which the study calculates could amount to a deficit of about 138,000 homes. In other words, the Bay Area’s housing allocation should be closer to 579,000, not 441,000, according to the suit.  

All in all, HCD “got the big picture” in their housing allocation for the Bay Area, says Chris Elmendorf, a law professor at UC Davis and one of the authors of the Lewis Center study. They accounted for the “adjustment factors” set out in SB 828, a 2018 bill from Senator Scott Wiener that requires the RHNA numbers to consider household overcrowding, rent-burdened households, and other metrics that define a healthy housing market. The problem was “those factors got all the oxygen, and seemingly, there was no adjustment made about this factor, jobs/housing balance, which has been on the books since 2008,” as part of a major climate bill, SB 375,  Elmendorf says. 

To understand how that factor got overlooked, you need to consider the geography of the RHNA jurisdiction represented by the nine county Association of Bay Area Governments as compared to the state’s other major metro area, represented by the Southern California Association of Governments (SCAG). 

SCAG includes the Inland Empire, the low-income suburbs that stretch deep into the desert of San Bernardino and Riverside counties. This is where SoCal’s supercommuters live, making multi-hour commutes to job centers closer to the coast. The equivalent parts of Northern California, including Stockton, Tracy, the Sacramento area, and Santa Cruz and Monterey Counties, aren’t part of ABAG. However, these areas are still home to hundreds of thousands of Bay Area commuters, who essentially plug the jobs/housing gap that exists in San Francisco, Silicon Valley, and many wealthy suburbs. 

“The SCAG region is, frankly, a much more honest rendition of that job shed, and the Bay Area regions is, bluntly, a dishonest rendition of our job shed,” says Jennifer Hernandez, a San Francisco-based land use attorney and YIMBY Law advisory board board member, “so that also facilitated the extreme-under recognition of the jobs/housing imbalance.”

As a result, the Bay Area’s housing allocation increased about 230 percent in the latest RHNA cycle, while Southern California’s allocation increased by more than 300 percent. 

Hernandez feels this discrepancy is “politically influenced.” The Bay Area has “more supporters of the current administration and donors of the current administration than Southern California,” Hernandez says, in reference to Governor Gavin Newsom. “It’s a pretty clear double standard.” 

Too Low or Too High?

Even as these YIMBY groups argue that the Bay Area’s housing allocations are too low, many other organizations and city governments believe they are too high. City leaders in Palo Alto and San Bruno have intimated that they will appeal their respective RHNA allocations, as have leaders in several Marin and Sonoma County cities. In Southern California, where housing allocations increased by even greater proportions than in the Bay Area, and whose RHNA process is farther along, 51 jurisdictions filed appeals over their RHNA allocations. Only two were granted in some form, according to Hernandez. 

In San Francisco, Supervisor Gordon Mar initially objected to the city’s RHNA allocation, saying the state was asking the city to build too much market rate housing. But when the Association of Bay Area Governments voted to adopt the state’s plan in January, Sup. Mar and Supervisor Rafael Mandelman, the city’s two ABAG representatives, both voted in favor of the motion. Some non-profit affordable housing developers, including the Mission Economic Development Agency and John Elberling of TODCO have come out against San Francisco’s housing allocation, criticizing the number of market rate units the plan calls for. 

Since then, several supervisors and Mayor London Breed took issue with another urban planning process, the latest draft of Plan Bay Area 2050, which calls for San Francisco to build 213,000 new homes over the next 30 years, saying that it planned for too much housing in low-income neighborhoods. The Metropolitan Transportation Commission, which produced the plan, will be revising it in response to city officials’ feedback. Some YIMBY critics called these concerns disingenuous, as ultimate land use authority rests with the San Francisco Board of Supervisors, who will determine where new housing can be built.

Those who believe the RHNA process has produced allocations that are too high also have a study to point to, from the Embarcadero Institute. The study claims that overcrowded and cost-burdened households were already accounted for under the previous RHNA methodology, and that the new methodology for the upcoming cycle “double counts” these and other metrics of housing need. The study was conducted and partially funded by Gab Layton, an aerospace engineer in Palo Alto who has previously opposed efforts to increase housing production, and has received widespread criticism from urban planning academics. 

A legal precedent ensures that cities appealing their RHNA allocations must go through an administrative process, not the courts, to avoid violating strict deadlines. Cities must adopt zoning rules that correspond to their RHNA number by late 2022, but before that, their zoning must pass through environmental review and other hurdles. Elmendorf thinks the courts might make a similar determination about the YIMBY groups’ lawsuit, leaving it up to the state legislature to determine whether to raise the Bay Area’s housing allocation.

As cities begin sending their housing plans to the state for adoption, major questions remain in terms of how HCD will interpret two of the statutory requirements in state housing law: whether plans affirmatively further fair housing, and the likelihood that the new zoning will actually result in new housing production. Those factors could force cities to zone for considerably more housing than their RHNA allocation, Elmendorf says, and in the fancier, more racially and economically segregated parts of town.  

Meanwhile, public officials throughout the Bay Area and beyond are beginning to respond to these state level housing mandates. Last week, Sup. Mandelman announced an ordinance that would legalize fourplexes on corner lots throughout San Francisco, as well as within a half mile radius of major train stations. This week, state assemblymember Alex Lee from Milpitas introduced legislation to create a new social housing agency that would build and manage mixed-income housing across the state. 

Foote of YIMBY Action says Mandelman’s proposal is a positive first step. “We already know it’s not going to be enough. The housing element process is going to push San Francisco to go a lot further,” she says. “But it’s a great salvo. Here we are, starting this process, normalizing these conversations.” 

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