By Malina Welman, CLS ’20
The 1926 U.S. Supreme Court landmark decision in Euclid v. Ambler Realty Co.— the one where Justice Sutherland infamously called apartment houses a “parasite”— is charged with tacitly giving municipalities across the country the green light to impose exclusionary restrictions on land.[1]Through the use of “snob zoning,” the Court’s decision empowered local governments for decades thereafter to exercise their police powers in order to keep out poor, more diverse city dwellers from white, wealthy suburbs.[2]
Since then, however, many of America’s municipalities have turned over a new leaf, so to speak, by enacting inclusionary policies that instead foster the creation of affordable homes for low- and moderate-income households. In fact, the Lincoln Institute of Land Policy has identified over five hundred programs across twenty-seven states, with New Jersey and California accounting for 65% of all inclusionary programs.[3]Yet, for some state-wide mandates, such as the one in California, these measures have often proved to be more symbolic than they have been effective in making good on their promise to create needed affordable housing opportunities.
In an article reviewing the impact of California’s inclusionary housing law (now over fifty years old), Liam Dillion pointed out that the fundamental problem with the law is that it merely required local governments to produce “prodigious reports to plan for housing – but [did not actually] hold them accountable for any resulting home building.”[4]The result: municipalities developed and adopted plans to build new affordable units in their communities with “‘no intention,’” as Councilman Herb Perez of Bay Area suburb Foster City admitted, “‘of actually building [them].’”[5]Indeed, the city recently went more than five years without approving new development projects despite the high demand for housing.[6]
In an effort to get California back on track, the state Legislature then passed 15 housing-related bills in 2017 to address housing affordability issues.[7]Two noteworthy bills were AB1505, which would require developers to include below-market units in new rental housing projects, and SB 35, which would require cities to approve projects such projects as long as they complied with local zoning regulations and a number of other requirements.[8]Nevertheless, it appears that communities are still attempting to evade their obligation through delay tactics. Such tactics often take the form of prolonged litigation that becomes costly enough to bankrupt developers, thereby resulting in a victory for neighbors without securing a favorable judgment from the court. In Cupertino, the affluent Silicon Valley neighborhood has been doing just that by going head-to-head with developers for over a decade about plans to build up to 2,400 new homes in a nearly-vacant shopping mall with a large percentage reserved for low-income residents.[9]Even in light of California’s new laws, Cupertino residents are resorting to other measures to defer the city council’s approval of the project through a voter referendum. However, their endeavors may ultimately be futile as developers are planning to go ahead with the project.[10]
Now, California’s new governor, Gavin Newsom, is stepping into the arena looking to end an era of inaction on the part of the state’s cities and counties to provide affordable housing. During his first state budget proposal in January, Governor Newsom came out swinging with, what Liam Dillon called, “a radical new step: punishing communities that block homebuilding by withholding state tax dollars.”[11]However, the governor is not waiting around to see whether municipalities heed his words. Weeks later, Governor Newsom filed a lawsuit against Huntington Beach for rezoning a parcel of land to restrict low-income housing.[12]Although it is still too early to tell what impact Governor Newsom’s aggressive policies will have on the affordable housing crisis in the state, it is an approach worth trying.
[1]Euclid v. Ambler Realty Co., 272 U.S. 365, 391, 394 (1926).
[2]See Elizabeth Winkler, “‘Snob Zoning’ is Racial Segregation by Another Name,” Washington Post(Sept. 25, 2017) https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/?utm_term=.86f600b1f0ec.
[3]Rick Jacobus, “Inclusionary Housing: Creating and Maintaining Equitable Communities,” Lincoln Institute of Land Policy (2015), https://www.lincolninst.edu/sites/default/files/pubfiles/inclusionary-housing-full_0.pdf.
[4]Liam Dillon, “California Lawmakers Have Tried for 50 Years to Fix the State’s Housing Crisis. Here’s Why They’ve Failed,” Los Angeles Times(June 29, 2017), https://www.latimes.com/projects/la-pol-ca-housing-supply/.
[5]Id.
[6]Id.
[7]“California Governor Signs Inclusionary Zoning Bill Into Law,” National Apartment Association (Oct. 10, 2017), https://www.naahq.org/news-publications/california-governor-signs-inclusionary-zoning-bill-law.
[8]Id.; Liam Dillon, “New Law Could Break the Stalemate Over Housing On the Site of a Near-Vacant Cupertino Mall,” Los Angeles Times(Dec. 16, 2018), https://www.latimes.com/politics/la-pol-ca-state-law-housing-cupertino-20181216-story.html.
[9]Dillon, “New Law Could Break the Stalemate Over Housing On the Site of a Near-Vacant Cupertino Mall,” Los Angeles Times(Dec. 16, 2018), https://www.latimes.com/politics/la-pol-ca-state-law-housing-cupertino-20181216-story.html.
[10]Id.
[11]Liam Dillon, “Gov. Gavin Newsom Threatens to Cut State Funding From Cities That Don’t Approve Enough Housing,” Los Angeles Times (Jan. 10, 2019), https://www.latimes.com/politics/la-pol-ca-gavin-newsom-housing-money-budget-20190110-story.html.
[12]Allysia Finley, “California’s Liberal Governor Hauls a Conservative City to Court,” Wall Street Journal (Feb. 1, 2019), https://www.wsj.com/articles/californias-liberal-governor-hauls-a-conservative-city-to-court-11549060961.