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VOL. 39, NO. 2, 2021

Message from the Editor-in-Chief 3By Cosmos Eubany

Time to Get Serious About Supply 4By Jordan LevineThe causes and consequences of California’s housing crisis are explored alongside the broader economic implications moving forward for the Golden State.

MCLE Self-Study Article: The Housing Accountability Act: Recent Improvements and Success 14By Matt GelfandThe Housing Accountability Act is a critical tool for challenging local denials of housing development projects. This article covers the basic features of the Act and recent enhancements to it, describes some recent successes, and offers several recommendations for proponents of housing developments.

Much Ado About ADUs: New Legislation and Emerging Legal Issues From California’s Attempt to Create Affordable Housing 25By Andrew HallAn examination of several recent ADU-related laws furthering the California Legislature’s goal of constructing affordable housing through the use of ADUs. This article discusses the affordability component, potential legal challenges to new ADU-related legislations, and barriers that continue to hinder ADU growth.

Breaking the Legal Paralysis: Combatting California’s Homelessness Crisis After Martin v. City of Boise . . . . . 35By Billy Cole, Theane Evangelis, and Bradley J. HamburgerIn Martin v. City of Boise, the Ninth Circuit held that municipalities could not issue criminal citations to persons sleeping in public spaces if that jurisdiction has fewer shelter beds available than persons experiencing homelessness. Following Martin, what can be done in cities that currently lack enough space in shelters to house their entire population of persons experiencing homelessness, but that still wish to ensure that public spaces remain safe and sanitary for all residents? In this article, we demonstrate that, while Martin does create a significant hurdle to curbing the homelessness crisis, it does not provide municipalities and elected officials with cover to avoid dealing with the homelessness crisis plaguing cities throughout California, since the vast majority of ordinances regulating the public health and safety remain fully constitutional and enforceable.

A Grounded Approach to Our Homelessness Crisis 45By Gary BlasiAn effective response to homeless encampments and the current emergency requires looking at the alternatives from the perspectives of unhoused people. A cost-effective and practical approach to the current emergency will focus much less on providing temporary shelter and much more on access to at least minimally adequate housing that provides some measure of privacy, dignity and stability.

CLA Real Property Section Business 56

2 California Real Property Journal

The statements and opinions contained herein are solely those of the contributors and not those of the Journal Editorial Board, California Lawyers Association, Real Property Section, or any government body. This publication

is designed to provide information regarding the covered subject matter and is made available with the understanding that should legal advice be required, the services of a competent professional should be sought.


EDITOR-IN-CHIEF

Cosmos EubanyRealty Income [email protected]

MANAGING EDITOR

Norman CherninAttorney at [email protected]

SECTION BUSINESS EDITOR

Neil KalinCalifornia Association of [email protected]

EXECUTIVE COMMITEE LIAISONFrantz FarreauHomeSmart Realty [email protected]

PRODUCTION COORDINATOR

Megan Lynch AdlerSublime Designs Media, LLC [email protected]

ISSUE EDITORS

Brandon E. BarkerMintz Levin

Brian D. JacobsBrian Jacobs Real Estate

Emily L. MaduenoMurphy & Evertz

Bryan PayneArcadis U.S., Inc.

EXECUTIVE EDITORS

Antonia BethelLaw Office of Antonia Bethel, Inc.

Steven W. BlakeBlake Law Firm

Bryan PayneArcadis U.S., Inc.

ISSUE EDITOR

Brandon E. BarkerMintz [email protected]

EXECUTIVE EDITOR

Steven W. BlakeBlake Law [email protected]

ARTICLE EDITORS

Jonathan [email protected]

Russell J. AustinMurphy Austin Adams Schoenfeld [email protected]

Brandon E. BarkerMintz [email protected]

Hana HardyCity of San [email protected]

Peter HolzerLaw Office of Peter [email protected]

Editorial Board Vol. 39 Issue 2 Editors

California Real Property Journal 3

Here it is; The Housing Issue! I understand that the statement is hyperbolic and as such I offer the following thoughts. We recognize how difficult it is to boil down the complex housing crisis into one journal issue. There are so many aspects to consider and a truly interdisciplinary approach is necessary to tackle the problem. We received a lot of interest in this topic and had the unfortunate task of trying to fit as much content as possible into these limited pages. As a result, there are aspects of the crisis that have been left out. Be that as it may, the editorial board is quite pleased with the ultimate selection and hope that it sparks insight, questions, and ultimately a fire in our readership that can be channeled towards solving the crisis.

First, Jordan Levine’s “Time to Get Serious About Supply,” frames the housing crisis in terms of a shortage of supply and looks at the root of the problem as well as the concomitant effects the shortage has had on the economy as a whole, homelessness, and on minority communities. He posits that numerous changes are required to resolve the fundamental issue.

Next, Matt Gelfand’s “The Housing Accountability Act: Recent Improvements and Success,” argues local governments are disincentivized from approving housing projects because of local constituents and notions of “Nimby-ism.” He then details a legislative effort to increase housing supply by making it more difficult for local governments to limit development in certain instances.

Thereafter, Andrew Hall’s “Much Ado About ADUs: New Legislation and Emerging Legal Issues From California’s Attempt to Create Affordable Housing,” looks at a different effort by the Legislature to improve the supply of affordable housing by allowing for accessory dwelling units and looks at the practical challenges of funding said projects.

Last but certainly not least, Issue 2 discusses homelessness, a condition that does not seem to get as much coverage in real property forums. We have included two articles on homelessness from two different perspectives. Cole, Evangelis, and Hamburger’s “Breaking the Legal Paralysis: Combatting California’s Homelessness Crisis,” advocates cities defending and enforcing their public health and safety ordinances against the homeless. In contrast, Gary Blasi’s “Homelessness” looks at the causes of homelessness; including among other things, the lack of affordable housing and advocates addressing those underlying causes.

The Journal and its editorial board will remain committed to publishing pieces that address and tackle the housing crisis from different perspectives. We appreciate your continued support and we welcome your ideas.

Cheers,

Cosmos Eubany [email protected] Realty Income Corporation

Message from the Editor-in-ChiefCosmos Eubany


Jordan Levine is the Vice President & Chief Economist at the California Association of REALTORS® (C.A.R.), a statewide trade organization of real estate professionals with more than 200,000 members. Jordan is responsible for C.A.R.’s housing market and economic research as well as the policy analysis for C.A.R.’s legislative and governmental affairs efforts. He has a passion for homeownership, is actively involved in the company’s diversity, equity, and inclusion initiatives, and regularly represents C.A.R. to its members, the real estate industry, policymakers, and in the local and national media.

I. INTRODUCTION

California has a housing crisis. This fact is not new, but the need for an adequate housing stock in California has become even more urgent in the wake of the COVID-19 pandemic. Housing has become more important to families than ever before because it is where we live, work, play, go to school, and so much more due to the effects of the pandemic.

Fortunately, there has been some progress made in recent years on building consensus for the causes of the housing crisis as well as solutions that could be implemented in the future. In general, it is much more likely to hear California’s current housing woes blamed on “supply” today than at any point in recent memory.

Notwithstanding consensus that supply is one of the main causes of the housing crisis, the specifics of how to bring more supply to the market is controversial. Some proponents advocate for more state control over local housing decisions (as seen in recent build by right proposals), which proposals have yet to garner broad support at the local level. Other proponents of new housing suggest that changes to zoning, land use, or density rules are the key to unlocking new supply. Boosting the rate of production of more accessory dwelling units (“ADUs”) also has its strong backers.

Reforming statewide environmental regulations, like the California Environmental Quality Act (“CEQA”), is also often highlighted as a substantive solution. Others argue that more land needs to be made available or that the growth in the costs of land needs to slow for housing to take off.

One of the biggest roadblocks to creating new housing supply continues to be the structure of California’s tax code at both the state and local levels. Builders and academics alike have highlighted the myriad of fees assessed on new development, which can in some cases drastically increase the cost to produce new housing.1 In some cases, cities themselves are blamed for the lack of new construction following the implementation of policies that make new development less attractive from a business standpoint, including, without limitation, burdensome parking requirements, setbacks, and floor area ratios. Thus, even as consensus starts to emerge that “supply” is the primary source of California’s housing woes, the action items stemming from this broad agreement are far from settled.

There is no single, simple solution to California’s housing crisis and while many of the solutions proposed to solve the crisis have merit, it is also critical to understand that these are not mutually exclusive options. Many factors hold back new development, and every area is unique in terms of size, location, economy, history, geography, demographics, housing stock, vacancy rates, and growth characteristics. As a result, there is no “one size fits all” solution.

Rather than relying on a single policy to save the proverbial day, cities, counties, the state, and voters should focus on making moderate changes to a variety of policies that collectively can begin to reverse the damaging impacts the housing shortage has created. As Stephen Levy, the former Director and Senior Economist for the Center for Continuing Study of the California Economy, said, “[w]hat will be required, instead, is an ‘all of the above’ strategy, supported by the broadest possible coalition, with leadership at the highest levels of state and local government.”2

Time to Get Serious About SupplyJordan Levine


This article will begin by laying out the roots of the housing shortage over the past several decades, how the lack of housing supply has impacted the housing market in California, how families bear the brunt of this shortfall, and how those trends force a spillover into the broader economy. The recommendations herein are an attempt to shift the conversation away from silver bullets and towards modest, incremental changes that can collectively add up to a comprehensive solution.

II. THE PROBLEM: EVIDENCE OF CALIFORNIA’S HOUSING CRISIS

California has been underbuilding for decades, and though the economy has gone through various business cycles since the 1980s, one pattern has remained consistent: the economy and population base has outstripped growth in the state’s housing stock. Many reasons underlie that fact, but this simple statement captures the essence of California’s housing crisis. Supply shortages lead to disproportionate increases in price that, in turn, suppress demand and consumption of a particular good or service—in this case, housing. When

supply is depressed, only those who already have the means to purchase such goods will be able to continue to afford them. In the case of housing, this means that those who have less financial means will end up underhoused and unhoused, which is precisely what we observe in California today.

This predicament has thrust the housing crisis into the spotlight for policymakers across the state, with consensus building that the solution is more supply. In the 2018 gubernatorial race, Gavin Newsom called for 3.5 million new homes to be built by 2025,3 and many key statewide agencies point to housing as an impediment to economic growth and quality of life for California residents. For example, in their statewide housing assessment, California’s Housing and Community Development Department (“HCD”) estimated that the state needs to produce roughly 180,000 units each year just to accommodate the state’s expected population and economic growth.4 However, 2020 became the fifteenth consecutive year where California fell far short of that production target. Going beyond that to the previous thirty-three years for which consistent data is available, California has only met or exceeded the projected target five times.5

The impacts of this shortfall have become more evident the longer that they have persisted. The nonpartisan Legislative Analyst’s Office (“LAO”) cites the lack of new housing construction as the key driver of reduced housing affordability in recent decades, and the consequent impacts that are associated with less affordability.6

To illustrate the problem, consider a few critical data points that help explain the erosion of housing affordability since the mid-1980s. An important historical observation is that, prior to 1970, homeownership in California was roughly on par with homeownership in the rest of the United States. However, by 2020, the gap between U.S. and California homeownership has opened to almost eleven percentage points (66.6% vs. 55.9%).7

Residential Units HCD’s Estimated Need

California Residential Permits vs. Estimated Housing Need

300,000

250,000

200,000

150,000

100,000

50,000

0

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

2020


Homeownership Rates by Decade

YearU.S.

Homeownership Rate (%)

California Homeownership

Rate (%)

1950 55.0 54.3

1960 61.9 58.4

1970 62.9 54.9

1980 64.4 55.9

1990 64.2 55.6

2000 66.2 56.9

2010 66.9 56.1

2020 66.6 55.9

Why has affordability and homeownership struggled so disproportionately in California? A lack of new construction explains much of this divergence. In 1986, California was home to roughly twenty-seven million residents. By 2020, the population swelled to just short of forty million. However, during that same period, housing production decreased dramatically. In 1988 (the earliest source of good information on housing production in California), the state was permitting more than 255,000 units per year—well above the HCD’s current target of 180,000 units per year. In 2020, however, California permitted just 100,000 permits. This means that in the last thirty-two years, California’s population expanded by 45%, while the annual pace of new residential construction contracted by more than 60%.

The results are similar when viewed from the perspective of economic, rather than demographic changes. For example, California added nearly 4.9 million new jobs to its nonfarm payrolls between 1990 and 2019, but it permitted just 3.4 million new housing units. 8 That represents a ratio of one new home built for every 1.4 new jobs created. However, those long-range calculations mask the acceleration in underbuilding that has occurred since the Great Recession. From the start of the recovery in 2010 to the end of the expansion in 2019, California added 3.1 million jobs, and was more than 1.7 million jobs above the state’s previous all-time high set back in 2007. During the same period, California permitted just 853,000 new residential units. That means that the state permitted just one home for every 3.7 new jobs the economy created.

It is also worth noting that these figures likely overstate California’s construction progress. Many of these permits

represent infill or redevelopment projects, where an older, smaller, or blighted home gets replaced by a newer, larger, and more expensive home. As such, the permit figures do not actually equate to a 1-for-1 increase in the state’s housing supply; consequently, the net housing stock has not grown by the full 853,000 units that have been permitted.

In addition to examining California’s historical data, a comparison to other states’ recent housing development shows a similar tale of California falling well short in housing production. Except for Rhode Island, which created fewer than 50,000 new jobs during the most recent economic cycle, California ranks dead last in terms of new residential construction per job created. Between 2010 and 2019, California built less housing per new job than Massachusetts, New York, or Washington D.C. States like Texas, Arizona, Idaho, Washington, and Florida, where significant numbers of Californians have moved over the past decade, are building at least twice as much on a per-job basis as California.

Some argue that this trend is highly regional in nature: coastal areas enjoy significant job growth but are more reluctant to build new housing, while inland areas make up some of the difference in housing stock. Although it is generally true that inland areas tend to build slightly more relative to their economic growth, the results are hardly encouraging. For example, in the cycle that just ended, the San Francisco Bay Area led the state in economic growth, creating more than 900,000 jobs since the Great Recession ended. In that same time period, however, it permitted just 207,000 units, or one home for every 4.4 jobs it created. Southern California mirrors the statewide average of one home for every 3.7 new jobs created with roughly 434,000 new permits issued since 2010 compared with more than 1.6 million jobs created. The Central Coast similarly matches the statewide trend as well. The Central Valley, which has a reputation for being friendlier towards residential development, performed better, but still only created one new home for every 2.2 new jobs in the southern half and 3.2 new jobs in the northern half. Thus, while some areas of the state are doing better than others in terms of building housing, California still builds less, even in the Central Valley, than in most other parts of the country outside of California.


In some ways, California’s biggest strength, its fast-growing economy, has become one of its biggest weaknesses as housing supply has failed to keep pace. This has meant lower vacancy rates, less housing turnover, and more Californians living in overcrowded housing units. As discussed in the following sections, the consequences of this undersupply are numerous in terms of their impact on the housing market, and those consequences help elucidate why the housing crisis is about more than just housing.

III. THE IMPACTS OF UNDERBUILDING ON THE HOUSING MARKET

The lack of housing production has had a significant impact on how the housing market operates in California. Because the state’s population and economy have grown so much more than the state’s housing stock, fewer homes are vacant and available to rent or purchase. In 2019, California was tied with Ohio and Rhode Island for the fifth lowest homeowner vacancy rate in the nation with just 1.2% of the owner-occupied housing stock available for sale. On the rental side, California falls to the third lowest rental vacancy rate in the nation at 4.1%. These rates are both lower than the average owner and renter vacancy rates in the United States, at 1.5% and 6.0%, respectively, as well as other high-cost areas like Hawaii (1.4%/8.8%), Washington D.C. (1.9%/7.0%), Connecticut (1.5%/6.4%), and New Jersey (1.4%/4.2%).9

Even with lower vacancy rates, however, the rates actually mask some of the supply shortage in the state. Not only

are there fewer available housing units in California than most other parts of the nation, but the units that California does have tend to be more overcrowded. Overcrowding is typically measured by whether or not households have more than one occupant per room, where rooms include kitchens, living rooms, lounges, and bathrooms. The number of sleeping rooms is often well below the total number of rooms in any particular housing unit. With 8.2% of households overcrowded according to 2019 census data, California is second only to Hawaii in overcrowding. California’s overcrowding rate is also well above the national average of 3.3% and significantly higher than other high-cost areas like New York (4.9%), Washington (3.5%), Washington D.C. (2.7%), and New Jersey (3.2%).10

In addition to the toll overcrowding can have on residents, lower vacancy rates and excessive overcrowding mean that California is overburdening its existing housing supply, further reducing mobility, which is another key aspect of supply. Not only is California not building enough new homes, but the state’s existing housing stock is also turning over at a lower rate than has been true historically. From 1980 to 1989, roughly 8% of the owner-occupied single-family homes turned over each year. Since 2010, such turnover rate has decreased to an average of just 6.3%.11 Not surprisingly, the housing turnover rate in California is also well below the national average. Unlike the size of California’s population, which has expanded greatly since the 1980s, housing sales remain at the rate of 400,000-420,000 units per year, roughly the same amount of sales that occurred in 1986 when there were thirteen million fewer people living in the state.

1,800,000

1,600,000

1,400,000

1,200,000

1,000,000

800,000

600,000

400,000

200,000

0

909,667

207,009121,417

32,884

289,675

90,284156,917

70,165

1,600,358

433,635

California Job Growth vs. Residential Construction (2010-2019/Pre-Crisis)

New Jobs Residential Permits

Bay Area Central Coast North Central Valley South Central Valley Southern California


Unfortunately, the impacts of chronic underbuilding are not limited to a lack of vacancies, homes turning over, and more residents living in overcrowded housing. This imbalance between supply and demand has driven even more harmful effects through the price of housing stock. The impacts of inflated pricing on California residents are simply a logical extension of excess demand for housing stock that persists in California.

IV. THE HUMAN IMPACT OF UNDERBUILDING

If the consequences of failing to accommodate economic and population growth by building an adequate supply of housing were limited to less mobility and fewer home sales each year, the problem may not have developed into a full-blown crisis. However, the negative effects extend well beyond the proper functioning of the housing market. In particular, rents and prices have been driven up much faster than incomes. Compared to historical rental rates and sales prices within California or where such prices are today in most other areas of the country, the simple truth is that housing is no longer affordable for the typical family in California. This lack of affordable housing creates a significant economic and human cost that is vividly evident.

On the ownership side of the market, home prices in California are more than double the national average. In December 2020, the median sale price of an existing single-family home nationwide was $309,800.12 In California, the median price for the same period was $717,930.13 Inflated home prices have not always been a hallmark of California real estate. In 1970, the median-priced home in the state was only 7.4% more expensive than the median-priced home nationwide. By the end of the 1970s, however, California home prices were roughly 50% higher than the national average, and increases continued in both the 1980s and 1990s. By the turn of the century, prices in California were more than double the national average, peaking at a premium of nearly 160% above the U.S. median price in 2007. Prices fell significantly in the wake of the Great Recession, but the subsequent economic expansion drove both nominal price levels and the ‘California premium’ back to more than twice the national average by 2013, where it has remained ever since. Homes are not only more expensive in California than they used to be, but prices have also risen faster than in the rest of the United States.

High prices are only part of the story, however, because one also needs to account for the relative income used to purchase such homes. After controlling for relative income

and borrowing costs, just 27% of households in California could afford a median-priced home in the state by the end of 2020, whereas roughly 55% of households nationwide could boast the same.14 Other measures of affordability show similar contrasts. The Census Bureau reported that California has 28.5% of its homeowners spending at least 35% of their gross income on their mortgage and other associated monthly housing costs, which is greater than every other state in the nation except Hawaii, and well above the national average of 19.9%.15

Although incomes in California exceed the national average and affordability is still a larger burden for the typical homebuyer than in most other parts of the country, the story only modestly improves for renters. According to the latest data, 43.6% of California’s renters are “rent burdened” as well, meaning that they pay at least 35% of their gross income on housing costs. Relative to other states, California’s percentage of the population that is “rent burdened” is only better than Florida, Hawaii, and Louisiana. This means that families living in California, regardless of whether they rent or own, spend more of their income to keep a roof over their heads than families in most other parts of the nation. With more money spent on housing costs, families are left more financially stressed because they have less income to dedicate to, among other matters, healthcare, education, child rearing, saving, investing, and entertainment. These stressors impact their quality of life, the state’s overall economy, and California’s ability to be able to deliver on the American Dream of social mobility and intergenerational advancement.

Nowhere is this more tragically evident than in the number of Californians in extreme financial distress. The National Alliance to End Homelessness reports that California saw an uptick in the population of homeless persons even before the onset of the COVID-19 pandemic.16 More than 150,000 people were homeless in California on any given night in 2019—up 9% from the previous year, and with a significant rise in those living without shelter. The rate of homelessness in California equates to more than thirty-eight individuals per 10,000 persons. While this rate still remains behind Washington D.C. and New York, which had ninety-three and forty-seven homeless persons per 10,000 persons, respectively, it is tied with Oregon for third worst in the nation. In terms of raw numbers, California has more homeless residents than all New York, Washington D.C., and Oregon combined.

Even those Californians who manage to avoid homelessness face significant financial hurdles due to rising housing costs and can often find themselves living well below the poverty


line. More than 8% of families in California were living below the poverty line in 2019, placing California twenty-second in terms of highest poverty rate nationwide.17 However, the baseline poverty line cutoff is the same for each of the fifty states and the District of Columbia. As a result, California’s higher average income means fewer families fall below the fixed poverty line threshold. Using a fixed poverty line, however, does not account for the cost of living in a state. For this reason, the Census Bureau also produces what is known as a “Supplemental Poverty Measure,” which attempts to control for differences in housing and other costs. Using this metric, California has the highest poverty rate in the nation.18

This is the vicious cycle, which economists refer to as “multiplier effects.” California’s economy has grown based on the state’s physical, environmental, cultural, and human capital, but housing construction has fallen short of the demand generated by that economic growth. As vacancy rates fall, housing costs increase, which in turn reduces mobility and turnover of existing housing stock. Tighter housing supply creates a more competitive housing market as the economy continues to expand and prices rise disproportionately compared to other states. Housing affordability suffers and people spend increasing shares of their income on higher housing costs, becoming rent and mortgage burdened. The economy suffers further as fewer dollars are available to spend on other goods and services, and people end up living in either overcrowded housing, in poverty, or on the streets.

Another important consequence of this cycle is that the homeownership rate remains depressed. The Federal Reserve’s Survey of Consumer Finance (“SCF”) consistently shows us that homeownership is the most proven vehicle for wealth accumulation and intergenerational social mobility.19 In the 2019 release, homeowners still held all the wealth in this country. While the average net worth of a U.S. family was $121,700, this was only due to the fact that the average homeowner had a median net worth of $255,000, as compared to renters who had just $6,300 in median net worth. In fact, homeownership status was more indicative of wealth than even education. The typical renter has less than half as much net worth as the typical high school dropout, a consistent fact since the SCF began in 1989.

Given that homeownership is a proven route towards improving one’s life and the lives of one’s children, California’s failure to address its housing shortage means that fewer families are able get started down that path. These dynamics are most acutely felt by California’s Black and Latinx communities.

V. THE IMPACT OF UNDERBUILDING ON MINORITY COMMUNITIES

As discussed previously, a lack of residential construction reduces affordability, which in turn depresses homeownership and wealth creation. Even though California maintained a double-digit homeownership gap with the rest of the United States by the end of 2020, there are also significant disparities within California across racial and ethnic lines that show Black and Latinx households bearing the brunt of the housing shortage.

For example, while homeownership rates for the state as a whole are roughly 55% compared with 65% for the country, white homeownership in California was 60.2% in 2019, only slightly behind the U.S. average. However, in that same year, homeownership rates for Black and Latinx households were just 36.8% and 44.1%, respectively. That is a gap of nearly 30% between Black and white homeownership and a 20% gap between Latinx and white homeownership. Unfortunately, this gap has shown few signs of decreasing in the last fifteen years, and even though gaps persist nationwide between white and Black and Latinx homeownership, those gaps are exacerbated and enlarged by California’s housing shortage, which affects these communities disproportionately.

VI. THE IMPACTS OF UNDERBUILDING ON THE CALIFORNIA ECONOMY

For those that work in or care about housing, the impetus for addressing the supply shortage is clear. However, the housing crisis poses a much broader threat for the California economy at large, and it is specifically because of this looming threat that increasing housing development should become a priority for the state as a whole.

For many years, California has been able to succeed economically despite its housing challenges. Employment growth is a prime example of this success. Although one of the hardest hit states by the Great Recession, California had one of the most robust economic recoveries in the nation when the expansion began. The State was creating jobs across the spectrum of wages, industries, and geographies.

Specifically, between 2012 and 2016, California was averaging between 2.5% and 3.5% growth in its nonfarm payrolls. This growth, however, began to slow in 2017, dropping to just 2.1%, and even further to just 1.5% in 2019. Some blamed the late stage of the economic cycle for this slowdown because job growth is always expected to slow down as an economy reaches full employment. Fewer workers who want jobs are sitting on the sidelines, so a


lack of available labor can stifle growth even as demand for products and services increased.20 That logic is sound and indeed is borne out by the recent slowdown in job growth nationwide. However, what full employment cannot explain is why California has consistently failed to outperform the country since 2017.

Between 2012 and 2016, California was consistently growing faster than the rest of the United States by an average of 100 basis points per month, averaging 3.5% annual growth as compared to 2.5% annual growth nationwide. In fact, prior to September 2018, California had outperformed the rest of the country economically for seventy-eight consecutive months, a period of more than six years. Since then, however, California has averaged a growth rate similar to the national average, and at times has even dipped below the national average. Thus, while full employment can explain why job growth was slowing down prior to the COVID-19 pandemic in absolute terms, it does not offer any insight into California’s inability to outpace other states.

Here, again, the chronic shortfall of housing construction in California is implicated as a prime suspect. As early as 2017, major employers were sounding the alarm bells on the impacts of housing affordability (or lack thereof ) on their ability to recruit talent.21 Not only do high housing costs make California less attractive to recruits from out of state, a recent study by USC and published in the Los Angeles Business Journal notes that they also boost commute times as workers are forced to live farther away from their places of employment. An increase in commuting times reduces the quality of life of workers and potentially impacts their performance at work as well, so businesses are subject to the negative effects of California’s housing shortage. Many large companies like Apple and Facebook have begun to pledge billions of dollars to address this lack of housing for their workers.

Over the short run, businesses have been impacted as recruitment and retention is both harder and more costly, while at the same time also becoming starved for skilled workers. In fact, 2020 was the first time since the Census Bureau began tracking state populations 120 years ago that California’s population declined.22

As previously discussed, homeownership is the one proven way that American families generate wealth. In addition to wealth creation, homeownership has positive and significant impacts on important outcomes such as protection from rising rents, improving of a child’s likelihood to graduate from high school, attend college, or be healthier even after controlling for other socioeconomic factors. Although some

advocate for alternative forms of wealth creation, by investing in the stock market as an example, it is important to note, as the Harvard Joint Center for Housing Studies put so eloquently, “while studies simulating the financial returns to owning and renting find that renting is often more likely to be beneficial, in practice renters rarely accumulate any wealth.”23 As housing affordability has deteriorated and homeownership stagnates, a larger swath of California’s population base has been locked out of these broader benefits.

The lack of affordable housing now offers one explanation for the decline in population last year and the exodus from California has been growing each year as the housing crisis has gotten worse. Net domestic out-migration accelerated in 2020 to more than 260,000 and more than 1.3 million residents have left since 2010. Although California’s critics point to the State’s oppressive income tax regime or hostility towards business in general, the demographics of those who choose to leave tell a different story. The vast majority of California’s out-migration is amongst individuals making less than $100,000 per year.

Given how progressive California’s income tax structure is, these statistics are exactly the opposite of what one would expect to find if it were taxes, rather than housing costs, that were driving people to other states because the lower one’s income, the less exposed one is to California’s high income taxes. Instead, it is the Californians who are struggling the most with housing costs that are leaving. This view is supported by the fact that a majority of people who leave California go to either Texas, Nevada, or Arizona. These states are not booming from an economic perspective, at least not in relation to California, but these states are home to housing markets that are both much more affordable and maintain higher levels of homeownership. In addition, the pandemic will likely cause these forces to accelerate further as workers are no longer tied to California employment centers given that it is anticipated at least some portion of the recent surge in telecommuting will be sustained.

Thus, not only has the housing crisis already begun to stymie economic growth, but businesses are suffering, which suggests increasing challenges for economic growth moving forward. It is directly because of these impacts that the issue of “housing” is really about much more than just housing, and in fact about the economy at large. If California cannot begin to reverse course on housing supply to improve housing affordability, the State will likely struggle to remain in the top 10% of overall state economic growth. Additionally, an examination of out-migration by occupation shows that California is losing key segments of


the population needed to build economic growth, including teachers, firefighters, police, and middle managers. The state is also seeing significant outflows of construction workers and tradespeople, workers that California desperately needs to get any new housing constructed.

California should take heed of trends in other countries, which evidence that, as populations decrease, so do economies. Unless California policymakers begin to take the threats of housing affordability and shortages seriously to keep the state’s population growing, it will take a significant improvement in worker productivity to offset expected economic losses.

VII. POTENTIAL POLICY SOLUTIONS

Given the implications of the pandemic in terms of remote working, the uptick in out-migration, and the headwinds to economic growth California was already experiencing, it has become more urgent than ever to get serious about California’s chronic underbuilding of housing. While it will take an all-of-the-above approach, there are several areas that, collectively, have the potential to help create housing affordability more quickly so that more families have the ability to achieve their dreams in California. Although the solutions proposed herein are certainly not exhaustive, this section aims to bolster the conversation around what is needed and how California can address its housing crisis using a variety of tools at its disposal.

At the state level, reforming the Regional Housing Needs Assessment (“RHNA”) process is a strong first place to start. Every planning cycle, each major region in California looks at demographic and economic trends to determine how much housing it will need in the coming years. However, there are many ways the RHNA process can be improved to yield more housing production, including providing stricter requirements for cities in terms of the number of units being constructed while also providing clearer rules for how estimated regional need should be allocated. In addition to establishing more realistic housing targets and providing for a fairer distribution of that development, there needs to be a disincentive for falling short. If cities are able to underbuild with impunity, the incentive to get serious about supply is undermined. There are a variety of ways to create disincentives, but one possibility would be to allow for more local control in areas that meet targets while similarly enabling the State to override local opposition to new development for those communities that consistently fail to meet their targets. There are a variety of ways to create monetary and nonmonetary rewards and punishments, but

the overarching goal should be to align incentives toward the desired outcome of more housing production and greater affordability.

CEQA is also badly in need of reform. Although well intentioned, it has increasingly become an instrument aimed at derailing new housing production more so than it is about protecting the environment. Allowing anonymous challenges to hold projects up in litigation for years and/or drive up the cost of a project through costly environmental impact review (“EIR”) processes and appeals have significantly impacted construction. The scope of this article does not permit for an exhaustive discussion of the ways that CEQA has been used as an impediment to addressing California’s supply crisis, but as the Chapman University Center for Demographics and Policy recently reported, “CEQA clearly remains the litigation of choice for housing opponents and that this litigation is a major contributor to California’s housing crisis.”24 One important finding worth noting is that CEQA is not primarily used as a tool to preserve pristine wildlife and important ecosystems, but instead is aimed in the majority of cases at high-density, multifamily apartments and condos in existing urban neighborhoods.25

In addition, under current law, in-fill development still requires a full EIR, but it is not clear that this should be the case. California already waves CEQA requirements for supportive housing projects and it is worth considering whether a similar approach should be applied to projects that meet a minimum percentage of inclusionary units. These are levers that our policymakers can pull and that could help alleviate some of the largest obstacles to housing production. California’s environment remains one of its biggest assets and we should do all we can to protect it, but environmental policy should be focused on preserving our environment instead of kicking away the ladder of social mobility.

By-right construction around transit, similar to what was proposed in Senate Bill 50 a few years ago, remains an attractive option as well because it would permit municipalities to connect jobs, housing, and transit together. Density is often considered a four letter word in California, but there are many ways to achieve density in a less intrusive way than relying solely on large multifamily projects. To be clear, California needs additional large, multifamily projects, but there are additional ways that the State can make significant headway on its housing shortfall with more modest approaches mixed in as well. ADUs are a prime example. While many residents might lament a large project sprouting up in their neighborhood, a small unit in the back of a single-family lot is less off-putting, and if even a small


fraction of the existing single-family housing stock built an ADU, it would result in a significant number of new housing units. For example, if just 2% of California’s roughly 6.7 million owner-occupied single-family homes constructed an ADU, that would equate to more than 130,000 new housing units, more than California’s entire annual production in the past few years.

California could also consider reviving public housing at the state level. Although the track record for public housing in the past has been less than exemplary, there is still an argument that public housing done right could be a significant tool in enabling more individuals to achieve housing affordability. This, in turn, would enable such individuals to begin their path toward homeownership and intergenerational mobility on solid footing.

At the local level, there are a variety of policies that could be implemented to reduce the cost and burden of constructing new homes. Zoning could be eased to allow residential development in more areas. Permit processes could be made more transparent and efficient with permit fees being commensurately reduced. Cities could consider alternative sources of revenue that do not translate into higher costs of construction and higher housing prices, including assessing developer, impact, and other construction-related fees on a per square foot basis instead of a per unit basis. Shifting costs in such a manner would remove the incentive of developers to build larger and more expensive homes, and instead build multifamily projects with more units. Other local solutions include loosening parking requirements, extending density bonuses to projects that meet certain goals for affordability and inclusion, and making public lands more available for new developments. Each of these measures would have a positive, incremental effect that could collectively lead to a significant improvement in housing production in California.

In addition to these various policy measures, Californians themselves need to get serious about the housing shortfall and to connect the dots on the consequences of inaction for their families, their housing options, their quality of life, and their economy. Simply put, if more Californians demanded housing production, policy makers would approve more housing projects. Groups like the Californians for Homeownership have begun to hold cities accountable to the law when it comes to approving new housing, but much more needs to be done in this arena. Ultimately, none of these solutions mentioned here will solve California’s housing crisis on their own and that is why embracing a variety of policies will be necessary to achieve a comprehensive solution.

VIII. CONCLUSIONS AND RECOMMENDATIONS

California is in the middle of a major housing crisis. For decades, California’s economy has been one of the top performers nationwide, while at the same time housing production lags significantly behind. As a result, the housing market seizes up with fewer vacant homes, less turnover of existing housing, and fierce competition for what little housing remains available in either the rental or ownership markets. These byproducts have led to a deterioration in housing affordability that has caused California’s homeownership rate to dwindle over time and to diverge starkly from the rest of the United States. In addition, the unaffordability of housing in California creates deep financial distress where a disproportionate number of families end up living in overcrowded housing, spending too much of their income on rents and mortgages, living below the poverty line, or even living on the streets. This is particularly true for California’s Black and Latinx families, who have borne the brunt of the housing shortage.

The good news is that the problem has been identified and there is growing consensus that the only way to solve this issue is to increase California’s housing supply. The other piece of positive news is that there are a variety of solutions already identified which can begin having an immediate impact on solving the crisis. Some of these policies can be pursued at the State level, while others can be implemented by cities and counties, all so long as there is a public will to do so. No one policy solution will be a panacea, so an all-of-the-above approach is needed because it is time to get serious about California’s housing crisis. Affordability has already deteriorated to the point where it is stifling broader economic growth and forcing Californians to leave the State to achieve homeownership elsewhere. With the COVID-19 pandemic offering workers more flexibility in where they live, while at the same time making our homes more important than ever before, it has become more urgent than ever to provide adequate housing. Failure will put California’s future economy and prosperity at stake.


Endnotes

1 Lynn Reaser, Opening the Door to San Diego’s Lower Housing Costs, Fermanian Bus. & Econ. Inst. at Point Loma Nazarene Univ. (2015).

2 Stephen Levy, California’s Housing Crisis Demands an All of the Above Strategy, Cal. Forward, Apr. 20, 2016.

3 Elijah Chiland,, California’s Next Governor Wants to Build 3.5 Million New Homes by 2025, Curbed L.A., Nov. 8, 2018.

4 Ben Metcalf, California’s Housing Future: Challenges and Opportunities, Final Statewide Housing Assessment 2025, Published by Cal. Dep’t of Hous. and Cmty. Dev., Feb. 2018.

5 The number of residential housing units permitted was sourced from the California Homebuilding Foundation (CHF), Construction Industry Research Board (CIRB), and accessed via Moody’s Analytics.

6 Mac Taylor, California’s High Housing Costs: Causes and Consequences, Cal. Legislative Analyst’s Off., Mar. 17, 2015.

7 U.S. Census Bureau, Decennial Census: 1950-2000; U.S. Census Bureau, Housing Vacancy Survey, 2005-2020.

8 California nonfarm employment was sourced from the California Employment Development Departments Labor Market Information Division, Industry Employment—Official Estimates, 1990-2019.

9 Homeowner and rental vacancy rates by state were obtained from the U.S. Census Bureau, 2019 American Community Survey.

10 Overcrowding, defined as more than one person per room, was obtained from the U.S. Census Bureau, 2019 American Community Survey.

11 Housing turnover is estimated using the number of existing single-family homes sold each year as reported by the California Association of REALTORS® in their Annual Historical Data Summary and the number of existing single-family owned homes in California from the U.S. Census Bureau’s Annual Social and Economic Supplement to the Current Population Survey.

12 The median sales price of existing single-family homes in the United States is reported by the National Association of REALTORS® each month.

13 The median sales price of existing single-family homes in California is reported by the California Association of REALTORS® each month.

14 The Housing Affordability Index for the United States and California are calculated and published by the National and California Associations of REALTORS®, respectively, each quarter and are determined by comparing the percentage of households who can afford the median priced home such that if they put down a 20% down payment, financed the home at current market interest rates, and paid 1.38% in property taxes, special assessments, and other local add-on taxes, that the payment would consume 30% of the household’s gross pay, or less.

15 Rent and mortgage burdened households are classified as households spending at least 35% of their income on housing costs and are reported in the U.S. Census Bureau, 2019 American Community Survey.

16 Homeless rate and homeless count estimates by state were obtained from the National Alliance to End Homelessness, State of Homelessness: 2020 Edition, published in 2020.

17 The California and U.S. traditional poverty rates were sourced from the U.S. Census Bureau, 2019 American Community Survey.

18 U.S. Census Bureau, Table 5. Number and Percentage of People in Poverty by State: 3-Year Average Over: 2017, 2018, and 2019, 2019 Supplemental Poverty Measure.

19 The Federal Reserve’s Survey of Consumer Finances is released every three years and provides a comprehensive look at household balance sheets across a variety of socio-economic and demographic characteristics, including homeownership. The most recent study was published in 2020 and covers consumers in the 2019 calendar year.

20 State and national nonfarm jobs data were obtained from the Bureau of Labor Statistics, Current Employment Statistics (CES).

21 Raphael Bostic, The Affordable Housing Crisis in Los Angeles: An Employer Perspective, L.A. Bus. Council, Apr. 2017.

22 U.S. Census Bureau, State Population Estimates.23 Christopher E. Herbert, Daniel T. McCue & Rocio

Sanchez-Moyano, Is Homeownership Still an Effective Means of Building Wealth for Low-income and Minority Households? (Was it Ever?), Harv. Joint Ctr. for Housing Studies, Sept. 2013.

24 Jennifer Hernandez, California Getting In Its Own Way: In 2018, Housing Was Targeted in 60% of Anti-Development Lawsuits, Edited by Joel Kotkin, Chapman U. Ctr. for Demographics and Pol’y, Dec. 2019.

25 Id.


Matt Gelfand is Counsel at Californians for Homeownership, a 501(c)(3) nonprofit organization founded by the California Association of REALTORS®. The organization works to address California’s housing crisis through impact litigation in support of the development of and access to housing for all Californians. Previously, Matt was a litigator in private practice at McKool Smith Hennigan, P.C.

I. THE HOUSING ACCOUNTABILITY ACT: A CRITICAL PIECE OF THE CALIFORNIA LEGISLATURE’S THREE-PART APPROACH TO THE HOUSING CRISIS

A. California’s Housing Crisis

Housing is scarce in California. Although there are many measures for estimating the adequacy of a region’s housing supply, the simplest is the number of housing units per capita. On average, the number of housing units needed to comfortably house a given population is similar across regions, yet the actual number of units per person varies significantly from region to region. California ranks forty-ninth out of the fifty states on this metric.1

As a result of the housing crisis, many Californians are being denied opportunities for housing security and homeownership that were afforded to previous generations. Families across economic strata are being forced to rent rather than experience the wealth-building benefits of homeownership.2 Many middle- and lower-income families devote more than half of their take-home pay to rent, leaving little money to pay for transportation, food, healthcare, and

other necessities.3 Unable to set aside money for savings, these families are also at risk of losing their housing in the event of a personal financial setback. Indeed, housing insecurity in California has exacerbated the state’s homelessness crisis.4

Beyond the human toll, California’s housing crisis harms the environment. “[W]hen Californians seeking affordable housing are forced to drive longer distances to work, an increased amount of greenhouse gases and other pollutants is released and puts in jeopardy the achievement of the state’s climate goals.”5

In recent years, the California Legislature has sought to address the state’s historic housing supply and affordability crisis, observing that

[t]he consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives. While the causes of this crisis are multiple and complex, the absence of meaningful and effective policy reforms to significantly enhance the approval and supply of housing affordable to Californians of all income levels is a key factor.6

At the core of California’s affordable housing crisis is a failure to build enough housing to meet demand. The Legislature has recognized that this lack of supply is driven, in part, “by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.”7

MCLE Self-Study Article: The Housing Accountability Act: Recent Improvements and SuccessCheck the end of this article for information on how to access one MCLE self-study ethics credit.

Matt Gelfand


In California, land use decisions are primarily made by local elected officials in California’s 540 separate cities and counties (collectively, “local governments”). These officials are elected by their current residents, not the people who might become residents if new housing is built. Existing residents often fear that new residents will overtax schools, roads, parks, and other aspects of local infrastructure. Existing residents may also worry about the direct impacts of a new housing development on their privacy, access to light, traffic, and the like—an attitude called NIMBYism.8 It is no surprise, then, that local elected officials may, for these and other reasons, work to limit new housing development, even in the face of widely-acknowledged regional housing needs. Put simply, because housing needs are regional but housing approvals are local, housing does not get built.

How does this work in practice? Local governments have several tools available to keep housing at bay:

First, they can limit development through zoning. The vast majority of California’s residentially-zoned land allows for single-family residential use only.9 Because much of this land is already developed as single-family housing, a large swath of the state is not available for additional housing. Where multifamily zoning is allowed, housing is constrained by rules such as density limits, height limits, restrictions on floor area ratio (FAR), and minimum parking requirements.

Even when the zoning is adequate initially, the beneficiaries of one wave of housing production may work to limit the next wave through downzoning. For example, in 1960, zoning in the City of Los Angeles would have allowed the development of housing sufficient to support a population of ten million residents. In the three decades that followed, the City reduced its zoned capacity by approximately 60% through downzoning, to around four million. Today, the City’s population is nearly at its zoned capacity, with almost no room for population growth—be it from childbirth or in-migration.10

Second, when a specific zoning-compliant project comes up for a decision, local elected officials can nevertheless deny the entitlements or permits necessary to build. Often, this comes in the form of a rejection based on a subjective criterion in the general plan or zoning standards, such as “neighborhood character.” These subjective criteria allow local decision-makers to retain a veto over specific projects, even after a particular site has been zoned for the development of housing. Other times, projects are rejected arbitrarily or with explanations that do not have a meaningful connection to any local development standard. Either way, these rejections usually result from resident opposition at public meetings.

Third, local governments can design their application procedures to be so long, onerous, costly, and uncertain that developers simply choose to develop elsewhere.

B. The Legislature’s Three-Part System for Addressing the Housing Crisis

California’s housing crisis has been building for decades, and the Legislature has been working to address it since the 1980s. Over time, the Legislature has developed a three-part approach that requires cities to plan for adequate housing, holds them accountable to those plans, and streamlines certain forms of development.

The centerpiece of housing planning in California is the Regional Housing Needs Allocation (“RHNA”) and Housing Element system. The RHNA system is a process for assessing and allocating housing targets on a periodic basis, generally every eight years.11 It starts with an assessment of housing needs by the California Department of Housing and Community Development (“HCD”). HCD allocates the state’s anticipated housing needs on a region-by-region basis, at different levels of affordability, based on established criteria.12 This need is then allocated to individual local governments by regional councils of governments.13

Once the allocations are established, each local government is tasked with developing an action plan (the Housing Element) to ensure that the local government’s land use policies enable the production of enough housing to meet its RHNA goals.14 The Housing Element must provide an inventory of sites available for residential development and assess constraints and market realities that affect the likely development activity at those sites, including local land use regulations.15 Local governments must make changes to their land use rules, including by rezoning, if needed to accommodate housing sufficient to meet their RHNA goals.16

Even when they have appropriately planned for housing, local governments can stymie residential development using long and onerous approval processes; for example, by conducting a slow-moving and expensive review process under the California Environmental Quality Act (“CEQA”). State streamlining laws like Senate Bill 35 (SB 35)17 address this problem by considering the practical effect of local land use rules on the development of housing; when a local government’s policies have not produced enough housing to meet its RHNA goals, developers of mixed-income housing projects are entitled to apply for streamlined approvals under SB 35. To qualify under SB 35, a development must comply with all a city’s objective development standards, provide a state-specified minimum percentage of units as affordable


housing at state-specified levels of affordability, and agree to certain construction worker pay conditions, among other criteria.18 Development applications that qualify under SB 35 must be approved as ministerial acts, and therefore without review under CEQA, drastically shortening the development review process.19

The planning work done during the RHNA and Housing Element process requirements is meaningless unless the standards developed during the process are enforced and local governments are prevented from engaging in project-specific vetoes based solely or primarily on public opposition. That is why the Legislature adopted the Housing Accountability Act (“HAA”), the primary subject of this article.

C. The Housing Accountability Act

As part of its efforts to address the housing crisis in the 1980s, the Legislature passed the Housing Accountability Act or “HAA” (often called the “anti-NIMBY law”), which limits the ability of local governments to reject proposed housing development projects.20 In recent years, the Legislature has strengthened the HAA several times.

Local governments are required to follow their own laws for all types of land use approvals. An unlawful denial of a permit can be challenged in court, usually in a petition for a writ of mandate under Government Code section 1085 or section 1094.5. But the HAA makes rejections of housing developments, including mixed-use developments,21 particularly difficult. It limits the justifications local governments can use to reject these projects, changes the burdens and standards of proof, and relaxes limits on standing.

In its current form, the HAA limits local review of housing development projects in these key ways:

1. Presumption in Favor of Approval for Standards-Compliant Housing Development Projects

The most well-known feature of the HAA is its strong presumption in favor of the approval of housing development projects that comply with objective local development standards. Local governments are nearly always required to approve a housing project if it meets the “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.”22

The crucial word here is “objective.” Local governments cannot reject housing projects based on subjective standards,

such as rules that refer to concepts like “compatibility” or “neighborhood character.”

The HAA requires local decision-makers to treat a project as compliant with local standards “if there is substantial evidence that would allow a reasonable person to conclude” that the project complies.23 In court, then, the local government must prove not only that its view is reasonable, but also that the contrary view is unreasonable. Where a local government’s staff have recommended approval of a project, it may find itself forced to argue that its own staff acted unreasonably, which is a difficult position to take.

Local governments are also subject to strict deadlines for determining whether a housing project complies with local standards. For projects with 150 or fewer housing units, if a local government finds that the project is inconsistent with its standards, it must notify the applicant within thirty days after the application is determined to be complete, and within sixty days for larger projects. If the notice is not made within the statutory time period, the project is deemed consistent with all local standards.24

If a local government desires to deny25 a project that is consistent (or deemed consistent) with its standards, it must make both of the following findings regarding impacts to “public health or safety”:

(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to [the prior paragraph], other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.26

In the expressly stated legislative intent of the HAA, the Legislature noted its expectation that the law be interpreted such that the conditions that would have a specific, adverse impact upon the public health and safety would “arise infrequently.”27


2. Presumption in Favor of Approval of Certain Mixed-Income Housing Development Projects, Even When Inconsistent with Some Local Standards

For certain mixed- and lower-income housing development projects, the HAA provides even stronger presumptions in favor of approval. These special provisions apply to two categories of projects:

• Projects in which at least 20 percent of the units are set aside for lower-income households, meaning that the units are “made available at a monthly housing cost that does not exceed 30 percent of 60 percent of area median income with adjustments for household size.”28

• Projects in which 100 percent of the units are set aside for moderate-income families, meaning that the units are “made available at a monthly housing cost that does not exceed 30 percent of 100 percent of area median income with adjustments for household size.”29

For these projects, approval is generally required unless the project fails to meet both the local government’s zoning standards and the site’s general plan land use designation.30 The law does provide several additional circumstances in which such a project can be denied—for example, where the jurisdiction has already met the relevant RHNA targets, where there is a “health or safety” concern (as described above), or in certain agricultural contexts—but these circumstances are unusual.31

In addition to the outright disapproval of eligible mixed- or lower-income projects, the HAA limits the use of conditions that would “render the housing development project infeasible for development” as mixed- or lower-income projects.32

3. Changes to Procedure and Standards of Review

The HAA includes several changes to standard writ of mandate procedures and standards of review that typically apply when challenging a land use denial.

First, the local government bears the burden of proving that its decision was made consistent with requirements of the HAA, not the petitioner.33 And if the local government denies a project that is consistent (or deemed consistent) with its local development standards, its findings regarding impacts to “public health or safety” must be supported by a preponderance of the evidence, not the substantial

evidence standard that applies in most administrative writ proceedings.34

Second, the HAA provides an express private right of action to challenge the disapproval of a housing development to any “housing organization,” as well as any “person who would be eligible to apply for residency in the housing development project.”35 A “housing organization” means “a trade or industry group whose local members are primarily engaged in the construction or management of housing units or a nonprofit organization whose mission includes providing or advocating for increased access to housing for low-income households and have filed written or oral comments with the local agency prior to action on the housing development project.”36

Third, the record in an HAA case must be prepared by the respondent local government, at its own expense, within thirty days after being served with the lawsuit, unless the petitioner chooses to prepare the record itself.37

Fourth, the HAA provides enhanced remedies for non-compliance. In most cases where a local government has failed to comply with the HAA, the reviewing court must order the local government to revisit its decision within sixty days. But if the local government is found to have acted in bad faith, the court may directly order it to approve the project at issue.38 Either way, if the local government does not comply with the court’s order within sixty days, the court is required to fine the local government at least $10,000 per proposed housing unit, to be deposited into a local housing trust fund.39 If the local government appeals a decision that it has violated the HAA in a case brought by the development applicant, the local government must post a bond in favor of the applicant.40

Fifth, a successful petitioner in an HAA case is automatically entitled to attorneys’ fees.41

Sixth, the HAA contains an expansive statement of intent regarding its interpretation: “It is the policy of the state that [the HAA] be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”42

4. Recent Enhancements to the HAA

In late 2019, the Legislature passed Senate Bill 330 (SB 330),43 the Housing Crisis Act of 2019, which adopted wide-ranging limits on local decision-making related to housing development. Most of these changes (including the changes to the HAA described below) are effective for a five-year


period from January 1, 2020 to January 1, 2025, unless extended by a subsequent legislative act.

SB 330 made two significant changes to the HAA:

• It provided a definition for the term “objective,” which is used throughout the HAA. Under SB 330, the term means “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.”44

• It established a “preliminary application” process for housing development projects. A preliminary application consists of seventeen specific, enumerated items of information about the proposed development.45 HCD has published a preliminary application checklist, which applicants may use to ensure they have submitted the required information.46 An application is “deemed complete” at the time of submission of a “preliminary application,” locking in most of the development standards and fees applicable to the development at that time.47

Several of SB 330’s other changes to state housing law, outside of the HAA, may impact the process for seeking approval of an HAA-eligible project:

• Local governments are generally prohibited from downzoning or otherwise limiting the intensity of residential use allowed on a site to a level lower than what was allowed on January 1, 2018. They are also prohibited from enforcing permit caps, population limits, and similar restrictions on development.48 Presumably, standards that are prohibited by these provisions in SB 330 do not qualify as “applicable” under the HAA.

• Local governments must determine at the time an application is deemed complete whether a site proposed for development is subject to local limits on the development of historic sites.49

• Local governments are prohibited from holding more than five hearings on any standards-compliant housing development project. For the purposes of this five-hearing rule, continuances count as hearings, as do “workshops” and similar less-formal types of meetings.50

II. SUCCESS STORIES

More than ever, applicants today are relying on the HAA to obtain housing approvals over public opposition. This section details cases, generally at the trial court level, where the HAA has been successfully employed. These cases, which have hit a fever pitch in the last two years, highlight the impact and wide applicability of today’s HAA.

Several of these cases were brought by non-profit organizations under the HAA’s non-profit standing provisions, either alone or together with the project applicants. Today, there are at least three non-profit, impact litigation organizations with active HAA dockets: the California Renters Legal Advocacy and Education Fund (“CaRLA”), Californians for Homeownership,51 and YIMBY Law.

A. Honchariw v. Stanislaus County

The 2011 case of Honchariw v. Stanislaus County52 is the most recent published California court of appeal decision involving a significant discussion of the HAA’s substantive limits on local decision-making. It concerned a proposed subdivision to create eight lots, each to be developed with a single-family home.53 The project was rejected by the Stanislaus County Board of Supervisors based on the finding that the site was “not physically suitable” for development, apparently because the lots were not yet connected to the public water system.54

On appeal, the County argued that the HAA applied only to low-income housing, and that the project failed to meet a County development standard requiring that homes be connected to the public water system.

The court of appeal rejected both arguments. Because the HAA defines “housing development project” to include (among other things) any project consisting of “residential units only,” the court held that the HAA applied to the market-rate single-family project at issue.55

As to the water connection requirement, the court held that it was not an “applicable” standard under the HAA in the context of a subdivision application, because the lots of the subdivision could not possibly be connected to the water system before the subdivision was approved. The court noted that the County’s requirement could be enforced through a development condition requiring the lots be connected to water before the actual construction of homes on the lots—and that such a condition had actually been proposed by County staff.56


B. North 40 Phase 1, Los Gatos

The North 40 Phase 1 project proposed 320 condominiums in a variety of configurations, including fifty subsidized affordable homes for seniors. The project is located on a former orchard that the Town of Los Gatos had long intended for housing.57

After hearing significant public opposition, the Town of Los Gatos denied the project based on eight findings related to issues such as the distribution of the units across the site, the unit mix, and the anticipated cost of the units.58 For example, the Town found that the units were “overly concentrate[ed]” in an area of the site that was identified for “lower intensity residential use” in the Town’s Specific Plan covering the site.

After the applicant sued under the HAA, the court held that the Town had substantial evidence for making most of these findings. But the court found that each of the findings referred to subjective criteria, not objective land use standards, and granted the applicant’s writ petition on that basis.

C. 1310 Haskell Street, Berkeley

In 2016, the owner of the property at 1310 Haskell Street obtained approval from the Berkeley Zoning Adjustment Board to replace the existing single-family home on the site with three single-family homes. The Board’s decision was based on staff ’s determination that the project met the City’s applicable, objective standards.59

The Board’s decision was appealed, and the Berkeley City Council overturned the Board’s decision, denying the permits required for the project without conducting an analysis under the HAA.60

A group of non-profits and individuals, including CaRLA, sued under the HAA. Days later, the City agreed to a stipulated writ of mandate overturning the decision, requiring the City to conduct a new hearing on the project in compliance with the HAA, and requiring the City to pay the petitioners’ attorneys’ fees. But the City Council again denied the project without complying with the HAA, this time refusing to grant the demolition permits necessary to enable the project. The Council reasoned that it did not need to comply with the HAA in denying demolition permits.61

The petitioners moved to enforce the parties’ prior stipulation. The court granted the motion, holding that it was “not a reasonable interpretation of the parties’ settlement agreement that City could avoid the HAA analysis it agreed to perform by denying an ancillary demolition permit (for

reasons that did not have to do with detriment caused by the demolition of the existing structure, but the construction of the Project).”62 Shortly thereafter, the parties agreed to a court order deeming the project approved and requiring the City to pay the petitioners’ costs and attorneys’ fees of over $45,000.63

D. Terraces Project, Lafayette

The Terraces project is a 315-unit apartment project first proposed in 2011. Facing public opposition, the applicant later proposed forty-four single-family homes for the same site, which the City of Lafayette approved. CaRLA sued under the HAA, seeking approval of the original apartment project. The trial court denied the writ petition, holding that the City’s approval of the substitute project did not constitute a denial of the original project.64

But the story did not end there. Recently, the applicant revived the 315-unit apartment project.65 The City’s staff concluded that the project qualified for the lower-income housing provisions in the HAA and that the City could not make any of the findings required by the HAA to deny the project.66 After a seven-and-a-half hour Planning Commission meeting and a nine-hour City Council meeting, with the applicant threatening a lawsuit under the HAA, the project was approved.67 It is unlikely that the project would have been approved without the threat of renewed HAA litigation.

E. 40 Main Street, Los Altos

The 40 Main Street project is a mixed-use project with fifteen residential units over ground-floor office space, with two of the residential units reserved for lower-income families. The project was proposed under SB 35, the state bill that provides for ministerial approval of mixed-income housing developments for areas with inadequate housing production.68 Like the HAA, SB 35 generally requires approval of a project if it meets applicable, objective development standards.69

The City denied the SB 35 application, citing local standards regarding parking and ingress/egress.70 The applicant and a group of organizations and individuals, including CaRLA, filed lawsuits under SB 35 and the HAA, which were consolidated for trial. After rejecting various procedural arguments by the City, the court held that the City had not identified any objective standards that the project failed to meet, and that the City had acted in bad faith in denying the project.71


The City declined to comply with the court’s order, and filed an appeal. The applicant then sought an order requiring the City to post a bond for the appeal, as required by the HAA.72 After the court set the bond at $7,000,000, payable within ten business days,73 the City dropped its appeal and agreed to pay the applicant $490,001 in damages for the delay caused by the appeal.74 The City subsequently paid the plaintiffs an additional $554,436.90 in attorneys’ fees.75

F. 1444 Fifth Street, Berkeley

The 1444 Fifth Street project proposed four single-family homes on a vacant lot. The project was approved by the City’s Zoning Adjustment Board based on staff ’s finding that it met all applicable development standards. The project was appealed to the City Council. After the Council closed the public hearing on the item, the Council raised for the first time an argument, unsupported in the law, that the project was subject to the City’s inclusionary zoning ordinance based on related development on an adjoining lot. The Council then decided to apply the inclusionary zoning ordinance to the 1444 Fifth Street project, and retroactively to the adjoining project, through a condition of approval.76

The applicant sued under the HAA, and the court held (1) that the inclusionary ordinance was not an “applicable” standard under the HAA, and (2) that even if the standard was “applicable,” the City failed to notify the applicant of the standard within the time period specified in the HAA, barring the City from applying it to the project. The court issued a writ requiring the City to rescind the condition of approval regarding the inclusionary ordinance.77 After the court’s decision, the City agreed to reimburse $250,000 of the applicants’ costs and attorneys’ fees.78

G. District Square, City of Los Angeles

The District Square project is a 577-unit mixed-use apartment project proposed for a vacant lot within walking distance of an existing metro station and an under-construction metro station in the City of Los Angeles.79

Facing public opposition based on concerns about the project’s affordability, the applicant offered to voluntarily income-restrict 11% of the project’s units.80 The South Los Angeles Area Planning Commission81 nevertheless rejected the project on the basis that the project would not “provide affordable housing for residents, therefore there is no economic growth in our community.” One commissioner noted that “no matter what the laws that are written, you have to be about the people. I see no empathy in the applicant at all. It’s all about the policies that are written.”82

The deputy city attorney present at the meeting attempted to intervene to prevent a violation of the HAA. He explained that the Commission would need to make a “public health or safety” finding under the HAA to deny the project, and that the record did not support such a finding. He also noted that the Commission’s concerns about gentrification and displacement did not have a reasonable connection to the project, which proposed the development of a vacant site. He urged the Commission to go into closed session to discuss the matter, but they declined to do so.83

Approximately six months after the Commission’s decision, the City issued a letter of denial purporting to state the Commission’s reasons for denying the project. In addition to the explanation given by the Commission, the letter indicated that the project was inconsistent with the relevant specific plan development standards because it did not account for concerns about gentrification and displacement.84

The applicant sued under the HAA, and the court granted the writ. First, the court struck the after-the-fact explanation of the Commission’s decision in the City’s letter of denial, holding that it did not constitute part of the Commission’s decision. The court then held that the project was deemed consistent with all applicable development standards because the City did not identify any inconsistencies within the sixty-day time period specified in the HAA. The court also held that the City lacked evidence for its findings about the socioeconomic impact of the project and that, in any event, the findings were subjective in nature and did not address a “health or safety” concern of the sort necessary to deny a standards-compliant project under the HAA.85

Noting that the Commission ignored the advice of the deputy city attorney, the court held that it had deliberately violated the HAA in an attempt to make policy, a function reserved for other city bodies:

The APC clearly acted in bad faith and acted on its own frolic and detour, egged on by a political liaison and the testifying residents to impose its own view of appropriate public policy—i.e., to take a stand against gentrification. It matters not that the APC believed it was acting in the community’s best interest. The APC does not set policy and it does not create law; its obligation is to apply existing law to evaluation of a project. The Legislature concluded in the HAA that local governments are impeding housing development by imposing subjective policies that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid


by producers of housing. §65589.5(a)(1)(B). That is exactly what the APC did by imposing its own views that gentrification is bad, displacement (even indirect displacement) must be accounted for, and the need for affordable housing trumps all. That is not the law, and there can be no legitimate dispute that the APC acted knowingly and deliberately to violate the law.86

Based on the City’s bad faith, and its effort to double-down on the decision through its belated letter of denial, the court ordered the City to approve the project within forty-five days and to pay the applicant’s attorneys’ fees.87 The applicant’s fee motion had not been filed at the time of writing.

III. BEST PRACTICES FOR APPLICANTS

This section presents a series of recommendations for housing development applicants seeking to benefit from the protections in the HAA. This list of recommendations is based on the author’s work at Californians for Homeownership, which litigates in support of housing development projects under the HAA, among other state laws. These recommendations address the common problems that are difficult to address in an HAA lawsuit, whether brought by the applicant or by an impact litigation organization.

A. Design a Project That Complies with Local Development Standards

In some cases, the perfect project can be the enemy of the good. Land use applicants often seek relatively minor variances from or changes to local standards (such as parking, setback, or height standards) in an effort to design a “better” project or maximize the development potential of a site. This is particularly common when the project will be subjected to an extensive review process whether or not it is compliant with local standards—for example, in jurisdictions where multi-hearing review of housing developments is the norm, or when significant environmental review is required. Applicants reason that the added risk and process will not be significant when compared to the rest of the application process, particularly if the applicant believes the project will be made more palatable by the requested variance or change.

By departing from local standards though, those applicants lose the benefits of the HAA. Applicants should carefully consider the timing, the lock-in of development standards as further discussed below, and the procedural benefits of the HAA before deciding whether to design a project that exceeds local standards. If there is a meaningful risk that

a project will be opposed by members of the public or by the relevant decision-makers, the applicant must account for the risk that the project could be denied after years of work—a risk that would be drastically reduced by proposing a standards-compliant project.

Where appropriate, applicants should consider pursuing two alternative projects in parallel—one standards-compliant and one requiring relief from standards—for as long as is necessary to properly assess the risk of denial.

B. Consider Designing a Project That Meets the HAA’s Standards for Lower-Income Housing

As discussed above, under the HAA, developments that include housing for lower-income families must be approved in a wider range of circumstances than market-rate housing developments. A project that meets other state or local standards for mixed-income housing may fall short of the HAA’s standard. Where the difference is small, it may be beneficial to adjust the income mix of the project to fall within the HAA’s standard. Indeed, in some cases, the HAA’s lower-income housing provisions may allow for a bigger or better project, offsetting the cost of providing affordable units.

C. File a Preliminary Application

Under SB 330, an applicant proposing a housing development project before January 1, 2025, can file a preliminary application, containing basic information about the project, to lock in the development standards that will apply to the project.88 This includes most fees.89 Because the details of the project can be adjusted fairly substantially without the project losing this benefit, the preliminary application can be filed well before a full submission is ready, and can help the applicant hedge against the risk of changing land use rules.90

D. Demand Compliance with the HAA’s Time Limits and Procedural Requirements

The HAA requires local governments to identify any inconsistencies between local development standards and a proposed housing development within thirty or sixty days after an application is determined to be complete.91 If the local government fails to identify a standard as inconsistent, the project is deemed consistent with that standard.92

While there is no requirement in the HAA that applicants specifically demand compliance with these time limits, it may be a good idea. A court may be inclined to excuse an accidental delay or omission, particularly where a local


government’s denial of a project is otherwise consistent with the HAA. But if there is a record that the applicant has demanded compliance, it will be harder for the local government to argue that its error should be excused, or that it has not acted in bad faith.

Although not part of the HAA, applicants should also consider demanding compliance with SB 330’s five-hearing limit.93

E. Invoke the HAA Early and Often

For similar reasons, it is valuable for an applicant to remind local government staff of the applicant’s rights under the HAA early in the development application process, and often enough to keep the HAA on the local government’s radar. This proactive approach increases the likelihood that local government staff, and their legal counsel, will explain the HAA’s requirements to the relevant decision-makers in staff reports and at public hearings. The risk of litigation is a significant disincentive for an elected body considering denying a project. Any such risk may be taken less seriously if raised at the last minute or as a surprise at a public hearing.

If a project is ultimately denied, a detailed discussion of the HAA by staff increases the chances that a court will determine that the decision was made in bad faith.

F. Engage With Pro-Housing Non-Profits, Including Impact Litigation Groups

Impact litigation organizations and other “YIMBY”94 groups are always looking for opportunities to support high-quality housing development projects, large and small. Applicants should reach out to these groups early in the application process, and again before each public meeting, to obtain letters of support and supportive oral comments. The housing approval process is often characterized as a battle between self-interested developers and the public interest, and pro-housing public interest groups can help re-frame that perspective.

Additionally, to have standing as a “housing organization” under the HAA, a non-profit impact litigation organization must submit comments on a project before it is denied.95 An applicant for an HAA-eligible project should consider obtaining as many comment letters from impact litigation organizations as possible before a decision is made on the project, to increase the perceived risk of litigation by these organizations should the local government deny the project. Because housing organizations have an absolute entitlement

to attorneys’ fees in a successful HAA case,96 this can be very compelling.

G. Insist on a Decision

To reach the courts, an applicant must first obtain a final denial of its project. With that in mind, it is common practice for local governments to seek applicant consent to delay or continue consideration of controversial projects. If the record does not support denial of the project, the decision-makers’ position on the project is unlikely to change, and if the applicant is prepared to litigate, there may be little benefit to providing that consent. Instead, the applicant should consider insisting on a denial to allow the applicant to then take the effort to court.

H. Build a Record For Litigation, Even If The City or County Seems Cooperative

Most developers are not in the business of making enemies among local elected officials, and approach the application process with a spirit of cooperation. That is commendable.

However, if there is even a slight risk of denial, it is important to build a record for litigation under the HAA. Demands for compliance with the HAA and questions about local standards should be sent in writing. Oral discussions should be contemporaneously memorialized and put in the record. Offers to mitigate health or safety impacts or address staff concerns should be written and clear. Because staff and local elected officials change, tomorrow’s decision-makers may be different and not be as cooperative as today’s.

I. In Litigation, Always Consider Making HAA Claims in Addition to Standard Writ Claims

The HAA controls local decision-making for nearly all housing and mixed-use projects, and a claim under the HAA provides significant benefits over standard writ of mandate claims. Nevertheless, applicants’ attorneys sometimes omit HAA claims from lawsuits challenging housing or mixed-use project denials. At a minimum, unless a denied housing project would have required a zone change or variance, applicants should always consider making claims under the HAA in addition to or as alternatives to other legal claims regarding the denial.


Endnotes

1 McKinsey & Company, A Tool Kit to Close California’s Housing Gap: 3.5 Million Homes By 2025, at 6 (2016), https://www.mckinsey.com/~/media/ mckinsey/featured insights/Urbanization/Closing Californias housing gap/Closing-Californias-housing-gap-Full-report.ashx.

2 Cal. Dep’t of Hous. and Cmty. Dev., California’s Housing Future: Challenges and Opportunities: Final Statewide Housing Assessment 2025 (2018), at 18-19 http://www.hcd.ca.gov/policy-research/plans-reports/docs/SHA_Final_Combined.pdf.

3 Id. at 27.4 Id. at 3, 48-50.5 Gov’t Code § 65584.6 § 65589.5(a)(2).7 § 65589.5(a)(1)(B).8 NIMBY is an acronym for “Not In My Back Yard.”9 Local Gov’t Comm’n, Revisiting Single-Family Zoning:

Creating Options for a More Affordable Housing Supply, https://www.lgc.org/newsletter/revisiting-single-family-zoning-creating-options-for-a-more-affordable-housing-supply/.

10 Greg Morrow, The Homeowner Revolution: Democracy, Land Use and the Los Angeles Slow-Growth Movement, 1965-1992, at p. 2-3 (2013), https://escholarship.org/uc/item/6k64g20f.

11 Gov’t Code § 65588.12 §§ 65584.01, 65588.13 § 65584.05.14 §§ 65583, 65583.2.15 §§ 65583, 65583.216 §§ 65583(c), 65583.2(h).

17 Stats. 2017 c. 366.18 Gov’t Code § 65913.4(a). 19 See Gov’t Code § 65913.4(k); Pub. Res. Code §

21080(b)(1); Cal. Code Regs., tit. 14, § 15268(a).20 Gov’t Code § 65589.5.21 The HAA defines mixed-use developments to

include “developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.” Gov’t Code § 65589.5(h)(2).

22 § 65589.5(j)(1). 23 § 65589.5(f )(4).24 § 65589.5(j)(2).25 Although most HAA cases related to the disapproval

of a project, the HAA also limits the application of a condition that the project be developed at a lower density. § 65589.5(j)(1).

26 § 65589.5(j)(1)(B) (emphasis added).27 § 65589.5(a)(3).28 § 65589.5(h)(3).29 Id.30 See id. § 65589.5(d)(5).31 See §§ 65589.5(d)(1)–(4).32 § 65589.5(d).33 § 65589.6.34 § 65589.5(d), (j)(1), (k)(1)(A)(i); see § 1094.5(c).35 § 65589.5(k)(1)(A).36 § 65589.5(k)(2).37 § 65589.5(m).38 § 65589.5(k)(1)(A)(ii).39 § 65589.5(k)(1)(B).40 § 65589.5(m).41 § 65589.5(k)(1)(A)(ii), (k)(2).42 § 65589.5(a)(2)(L).43 Stats. 2019, c. 654. 44 Gov’t Code § 65941.1(h)(8).45 § 65941.1.46 https://hcd.ca.gov/community-development/

accountability-enforcement/docs/sb%20330%20preliminary%20application%20%20form_final.pdf.

47 Gov’t Code § 65589.5(o).48 § 66300(b)(1).49 § 65913.10.50 § 65905.5.51 The author’s employer.52 200 Cal. App. 4th 1066 (2011).53 Id. at 1070-71.


54 Id. at 1078-79 & n.8.55 Id. at 1077.56 Id. at 1080.57 Louis Hansen, How Hard Is it to Build in Silicon Valley?

Here’s One Example, SiliconValley.com, Mar. 12, 2018, https://www.siliconvalley.com/2018/03/12/how-hard-is-it-to-build-in-silicon-valley-heres-one-example/.

58 Eden Housing, Inc. v. Town of Los Gatos, Santa Clara Cty. Super. Ct. Case No. 16CV300733, June 9, 2017 Decision and Judgment, at 8-13, https://lg-ca.com/wp/wp-content/uploads/2017/06/pld.Desision.Judgment.granting.writ_.pdf.

59 S.F. Bay Area Renters Fed’n v. Berkeley City Council, Alameda Cty. Super. Ct. Case No. RG16834448, July 21, 2017 Order, https://carlaef.org/document/order-to-enforce/.

60 Id.61 Id.62 Id. at 2.63 S.F. Bay Area Renters Fed’n, Sept. 20, 2017 Order,

https://carlaef.org/document/final-order/.64 Trauss v. City of Lafayette, Contra Costa Cty. Super. Ct.

Case No. N15-2077, April 3, 2017 Order.65 Rachel Swan, The Apartment Proposal That Sparked

Lafayette’s Housing War Is Back. Can It Win Approval?, S.F. Chron., July 30, 2020, https://www.sfchronicle.com/bayarea/article/The-apartment-proposal-that-sparked-Lafayette-s-15447471.php

66 Staff Report for Agenda Item 6A at the City of Lafayette’s Aug. 24, 2020 City Council Meeting, 3, https://lafayette.granicus.com/MetaViewer.php?view_id=3&clip_id=5026&meta_id=119632.

67 Peter Hegarty, Bitterly Fought Terraces of Lafayette Apartment Project OK’d, East Bay Times, Aug. 25, 2020, https://www.eastbaytimes.com/2020/08/25/apartment-project-wins-approval-in-lafayette/.

68 Sara Tabin, Judge Rules Against Los Altos In Suit Over Sorensen Brothers’ Proposal at 40 Main, Palo Alto Daily Post, Apr. 30, 2020, https://padailypost.com/2020/04/30/judge-rules-against-los-altos-in-suit-over-sorensen-brothers-proposal-at-40-main/.

69 Gov’t Code § 65913.4(a)(5).70 40 Main Street Offices v. City of Los Altos, Santa Clara

Cty. Super. Ct. Consolidated Case Nos. 19CV349845 & 19CV350422, Apr. 27, 2020 Order, at 3-7. The City also disputed the applicability of the relevant aspect of

SB 35 to the City, but later abandoned that argument. Id.

71 Id. at 37-39.72 Gov’t Code § 65589.5(m).73 40 Main Street Offices v. City of Los Altos, Sept. 2, 2020

Order, at 8.74 Bruce Barton, State Law, Judge’s Order Forces Council

Approval of 5-story Project for Downtown, Los Altos Town Crier, Sept. 10, 2020, https://www.losaltosonline.com/news/sections/news/297-news-features/63158-state-law-judge-s-order-forces-council-approval-of-5-story-project-for-downtown.

75 City of Los Altos Draft Comprehensive Annual Financial Report, Fiscal Year Ended June 30, 2020, at 74, https://www.losaltosca.gov/sites/default/files/fileattachments/financial_commission/meeting/58941/item_2._fy19-20_draft_cafr_.pdf.

76 1444 Fifth Street LLC v. City of Berkeley, Alameda Cty. Super. Ct. Case No. RG19032434, Sept. 23, 2020 Order and Judgment, at 2-3.

77 Id. at 4-5.78 Staff Report for Agenda Item 5 at the City of Berkeley’s

Dec. 15, 2020 City Council Meeting, https://www.cityofberkeley.info/Clerk/City_Council/2020/12_Dec/Documents/2020-12-15_Item_05_1444_Fifth_Street_LLC_v_City_of_Berkeley.aspx.

79 District Square, LLC v. City of L.A., L.A. Cty. Super. Ct. Case No. 20STCP00654, Sept. 24, 2020 Decision, at 4–5.

80 Id. at 8.81 Certain land use decisions in the City of Los Angeles

are delegated to region-specific planning commissions.82 District Square, LLC, at 8-9.83 Id.84 Id. at 9.85 Id. at 12-14.86 Id. at 20.87 Id. at 20-21.88 Gov’t Code § 65589.5(o)(4).89 § 65589.5(o)(4).90 See § 65589.5(o)(2)(E).91 § 65589.5(j)(2)(A).92 § 65589.5(j)(2)(B).93 See § 65905.5.94 YIMBY is an acronym for “Yes In My Back Yard.”95 Gov’t Code § 65589.5(k)(2).96 Id.


Andrew E. Hall is senior counsel at the Blake Law Firm in Encinitas. Mr. Hall’s practice focuses on commercial and residential real estate, including landlord-tenant disputes, purchase and sale disputes, title insurance claims, Homeowners Associations disputes, and zoning and land use. Mr. Hall is also licensed to practice in Washington. Mr. Hall may be contacted by email at [email protected] or by phone at (858) 232-1290.

I. INTRODUCTION

It is no secret that California is in the midst of a housing crisis.1 “The state is falling far short of meeting current and future housing demand with serious consequences for the state’s economy, ability to build green infill consistent with state greenhouse gas reduction goals, and the well-being of our citizens, particularly lower and middle-income earners.”2 In the last decade, less than half of the homes needed to keep up with the population growth were built.3 This, in turn, has created a trickle-down effect in that less housing has resulted in more demand and less affordability, particularly for renters and especially for low- to moderate-income households. In 2019 alone, eighteen bills were signed into law designed to jumpstart production, and as of January 1, 2020, six of those were implemented to encourage production of accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) by loosening restrictions.

There are several benefits to constructing ADUs. ADUs provide a low-cost means of creating housing supply as they can be created by taking space from the primary residence, adding to the primary residence, or constructed

as a standalone building on the homeowner’s property. Because ADUs must be built on lots with existing or proposed housing, they do not require paying for new land, dedicated parking, or other costly infrastructure that would otherwise be required to build a new single-family home.4 The construction of ADUs infill areas closer to jobs and amenities while creating opportunities for homeowners to receive extra monthly income through rent. ADUs may also be used as a home office or homeschooling classroom. The COVID-19 pandemic has dramatically impacted where and how we work and where our children are educated. According to a Gallup poll from the summer of 2020, the average U.S. worker now telecommutes an average of 11.9 days per month, which is double the 5.8 days per month from the fall of 2019, and over one-quarter of U.S. workers work entirely from home.5 Moreover, according to the U.S. Census Bureau, nearly 93% of households with school-age children report some form of distance learning during COVID-19.6 Homeowners continue to be interested in ADUs for a variety of reasons and the Legislature continues to pass laws to facilitate their construction.

There are, however, barriers to the construction of ADUs. To address California’s housing crisis, the intent of the Legislature is to encourage the construction of affordable ADUs and JADUs.7 While restrictions on ADU construction have been stripped to their studs, options to financing the construction of ADUs remain limited despite recent laws and incentives taking place over the past year. Though ADU permitting and completion numbers continue to grow, there may be even more room for growth by making available financing, education, and assistance to homeowners interested in adding an ADU to their property. This article examines several recent ADU-related laws that took effect, options for financing ADUs, potential legal challenges

Much Ado About ADUs: New Legislation and Emerging Legal Issues From California’s Attempt to Create Affordable HousingAndrew Hall


related to these new ADU laws, and barriers that still exist to continued ADU growth.

II. SUMMARY OF RECENT ADU RELATED LEGISLATION

Since 2019, a number of laws have taken effect that aim to remove hurdles associated with the construction of affordable housing and enable local jurisdictions to meet housing goals and increase housing supply in the face of the State’s housing crisis. In 2020 alone, there were six bills enacted that directly impact ADU governance.

A. Senate Bill 13

Senate Bill 13 (SB 13) was signed into law on October 9, 2019, and went into effect on January 1, 2020. SB 13 amends Government Code sections 65852.2 and 65852.22 with its primary thrust being to reduce barriers to constructing ADUs in an effort to increase the supply of affordable housing. SB 13 made changes, some significant, to existing law, including the following changes.

1. Streamlining of Application Approval

Prior to SB 13, local agencies were permitted to approve or disapprove an ADU application within 120 days after receiving the application. SB 13, however, requires a local agency to consider and approve an ADU application in half the time, within sixty days after receiving a completed application. Further, if the agency fails to act on the application within sixty days, the application is deemed approved.8 This substantially cuts down on approval timelines to expedite construction.

2. Prohibiting Requirement that Applicant for an ADU Be Owner-Occupied

Pre-SB 13, a local agency was permitted to condition approval of an application on a requirement that the applicant be an owner-occupant of either the primary or accessory dwelling unit as a condition of issuing a permit. This is no longer the case. Instead, local agencies are prohibited from imposing an owner-occupant requirement. Notably, there is a January 1, 2025 sunset on this owner-occupant proviso.9 Now, not only may a homeowner apply for an ADU, but landlords and owners of non-owner-occupied properties may also apply, which opens up the potential for additional housing while creating a potential new revenue stream for landlords.

3. Creation of Tiered Fee System Based on the Size of the ADU

The crown-jewel of SB 13 is the creation of a tiered fee system based on the size of the ADU. Specifically, it prohibits local agencies from imposing any impact fee on an ADU of less than 750 square feet and requires any impact fees for an ADU of 750 square feet or more to be proportional to the square footage of the primary dwelling unit.10 Some may argue that the limiting of impact fees through this tier system could result in a reduction of revenue streams that may otherwise be used to provide public improvements and infrastructure that may service the infill created by an influx of ADUs and residents of these newly constructed ADUs. The stated purpose of this tiered fee system is to eliminate prohibitive cost barriers that may otherwise prevent a prospective ADU applicant to move forward with the project. This harkens back to the Legislature’s stated intent in addressing the housing crisis: to construct affordable housing. SB 13 attempts to do so by reducing cost barriers for the construction of ADUs.

B. Assembly Bill 68

Like SB 13, Assembly Bill 68 (AB 68) was signed into law on October 9, 2019, and took effect on January 1, 2020. AB 68 amends Government Code sections 65852.2 and 65852.22, and its focus is to make it faster and easier to obtain an ADU permit and build an ADU. To wit, the purpose of AB 68 is to allow ADUs to go from “policy to permit in 12 months.” AB 68 also requires permits to be approved or denied within sixty days.

1. Expansion of Ministerial Approval Requirements

Prior to AB 68’s enactment, existing law required a local agency to ministerially approve an application for one ADU per single-family lot, subject to certain conditions and requirements. AB 68, however, allows owners of single-family homes to build both a regular sized ADU and a JADU. Thus, homeowners can now build a JADU attached to the primary dwelling unit while creating a separate ADU on the property.11 This potentially appeals to a much broader array of property owners while creating multiple livable units on a single property.

2. Adjustment to ADU Size Requirements

AB 68 also expands the potential size of an ADU. Prior to AB 68, ordinances were required to provide a maximum and minimum ADU size. AB 68, on the other hand, prohibits the imposition of size limitations if the ordinance does not


permit at least a minimum ADU size of 800 square feet and 16 feet high. Likewise, if an ordinance fails to allow these minimum requirements, it cannot impose limits on lot coverage, floor area ratio, open space, and minimum lot size.12 In other words, local agencies cannot enact an ordinance that does not allow an ADU of at least 800 square feet and 16 feet in height.

C. Assembly Bill 881

Assembly Bill 881 (AB 881) walks in lockstep with SB 13 and AB 68. In fact, AB 881 is considered a shared bill with AB 68. Like AB 68, it amends Government Code sections 65852.2 and 65852.22 with the intent of updating and clarifying ADU statutes in an effort to reduce barriers to construction and facilitate the construction of more housing. Further, like AB 68, AB 881’s key provisions seek to streamline the process for ADU approvals, including through ministerial approval of ADUs on lots with multifamily residences and within existing garages, a loosening of zoning requirements, elimination of owner-occupancy requirements, and elimination of restrictions on parking requirements. It is possible, however, that the elimination of owner-occupancy requirements could have unintended consequences. By eliminating the owner-occupancy requirements, AB 881 potentially incentivizes investors to purchase single-family homes and add ADUs thereto, thereby commercializing ADUs.

D. Assembly Bill 670

Assembly Bill 670 (AB 670) takes on Homeowners Associations (HOA) by augmenting the Davis-Stirling Common Interest Development Act through the addition of section 4751 to the Civil Code. AB 670 was introduced to address concerns that HOAs may attempt to bar ADUs in their Covenants, Conditions, and Restrictions (CC&Rs). For example, CC&Rs may limit each lot to a single unit of housing, effectively prohibiting ADU development within the common-interest development (CID).

Civil Code section 4751 deems void and unenforceable any CC&R provision that “effectively” prohibits the construction or use of an ADU or JADU on a lot zoned for single-family residential use that meets the requirements of Government Code sections 65852.2 or 65852.22.13 It does, however, allow HOAs to impose “reasonable restrictions” on ADUs or JADUs.14 “Reasonable restrictions” are those that “do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent

with the provisions of Section 65852.2 or 65852.22 of the Government Code.”15 Whether a provision is a “reasonable restriction” is open to interpretation and could create conflict between homeowners and their HOA. What is clear, however, is that HOAs must permit their members to construct ADUs within the applicable CID, so long as the applicable requirements described above are met.

E. Assembly Bill 671

Assembly Bill 671 (AB 671) was one of several ADU-related bills signed into law on October 9, 2019, and it took effect on January 1, 2020. AB 671 amended Government Code section 65583 to require local housing elements to include plans incentivizing and encouraging ADU rentals that can be offered at affordable rent for very-low, low-, and moderate-income households. Further, AB 671 amended Health and Safety Code section 50504.5 to mandate that, by December 31, 2020, the Department of Housing and Community Development must develop and post on its website a list of existing state grants and financial incentives for operating, administrative, and other expenses in relation to planning, construction, and operation of ADUs to be rented to very low-, low-, and moderate-income households.

F. Assembly Bill 587

Assembly Bill 587 (AB 587) was the final bill signed into law on October 9, 2019 and adds section 65852.26 to the Government Code. Prior to the passing of AB 587, a local agency was permitted to prohibit the sale or conveyance of an ADU separate from the primary residence. AB 587, however, creates a very narrow exception allowing a local agency to permit ADUs to be sold or otherwise conveyed separately from the primary dwelling through deed-restricted sales.

In order to do so, however, all of the following prerequisites must apply: (1) the property was built or developed by a qualified nonprofit corporation; (2) there is an enforceable restriction on the use of the land pursuant to a recorded contract between the qualified buyer and the qualified nonprofit corporation that satisfies all the requirements of Revenue and Tax Code section 402.1(a)(1); (3) the property is held pursuant to a recorded tenancy in common agreement that (a) allocates to each qualified buyer an undivided and unequal interest in the property based on the size of the dwelling each qualified buyer occupies, (b) it contains a repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation the right to buy the property if the buyer desires to sell or convey the property, (c) the qualified buyer occupies the property as its principal


residence, and (d) the property will be preserved for low-income housing for forty-five years for owner-occupied housing units and will be sold or resold to a qualified buyer; (4) a grant deed naming the grantor, grantee, and describing the property interests being transferred shall be recorded in the county in which the property is located; and (5) if requested by a utility providing service to the primary residence, the ADU has a separate water, sewer, or electrical connection. A “qualified buyer” is defined as persons and families of low or moderate income.

As context, AB 587 was introduced in an attempt to aid nonprofit corporations, such as Habitat for Humanity, in its mission to create more affordable housing, which coincides with the Legislature’s stated intent to address the housing crisis. Due to the limited availability and increasingly high cost of land, nonprofit corporations were having a difficult time acquiring the land necessary to increase housing. Government Code section 65852.26 not only allows these nonprofit corporations to build two housing units on the same parcel of land, but, due to the deed restriction requirements, keeps the land affordable. While the gist of AB 587 sounds appealing in theory, the reality is that its application is likely to be incredibly narrow and inapplicable to most homeowners. Also of note, unlike the other legislation discussed above, Government Code section 65852.26 does not mandate action by a local agency. Thus, local agencies retain discretion as to whether to implement responsive ordinances. Government Code section 65852.26 may particularly appeal to jurisdictions such as coastal areas where land tends to cost more.

III. ADU FUNDING RESOURCES EMPHASIZING THE CREATION OF AFFORDABLE HOUSING

Up until recently, the main thrust of ADU-related legislation in California was designed to encourage the creation of ADUs and eliminate the red tape associated therewith; despite these efforts, construction of an ADU or JADU remains a costly endeavor. “An analysis of ADU construction data suggests that the average ADU cost in California is $167,000, with the caveat that cost may vary depending on the size, location, and quality of the ADU.”16 For instance, in “Los Angeles, the average cost estimate is $148,000 while the average cost in the Bay Area is $237,000, a gap that is driven largely by differences in labor costs between the two regions.”17 While restrictions on the construction of ADUs and JADUs have eased in recent years, it remains an expensive and often cost-prohibitive venture.

Several cities and counties have attempted to mitigate the financial impact of ADU construction by creating additional avenues for funding beyond those traditionally used by homeowners, lowering costs associated with the construction of ADUs, and creating incentives for those that construct and rent ADUs. For example, in an effort to reduce the costs associated with constructing an ADU, the County of San Diego offers six standard ADU building plans pre-approved for compliance to the California Building Code that the County advertises as being “approximately 85% complete.”18 The City of Stockton offers three ADU plans (a studio floorplan, a one bedroom floorplan, and a two bedroom floorplan) free of charge,19 and the City of Chico offers an “ADU Catalog” with thirteen pre-approved ADU floorplans.20 Other jurisdictions have incentivized ADU construction through loan forgiveness programs. The County of Santa Cruz, for example, offers an “Accessory Dwelling Unit Forgivable Loan Program,” whereby it offers loans of up to $40,000 to homeowners for the addition of an ADU to their property where the homeowner is willing to rent the ADU to low-income households at affordable rents for up to twenty years.21

To reduce the potential financial impact of funding an ADU, the Legislature has passed a number of ADU funding laws designed to not only incentivize the planning, construction, and operation of ADUs but to promote and encourage the offering of ADUs for rent to low- to moderate-income households.22 Notwithstanding the foregoing, options for financing the construction of an ADU remain limited. Indeed, a “2020 survey by the Center for Community Innovation found that among California jurisdictions, lack of financing is now the number one barrier to more widespread construction.”23

A. Traditional Methods of Financing

When looking to acquire funds to construct an ADU, homeowners’ first stop tends to be traditional methods such as a cash-out refinance, opening a home equity line of credit (HELOC), seeking a renovation loan, or even drawing from existing cash savings. However, these traditional methods often fail to meet the needs of homeowners since “traditional loan products are not designed for ADU financing, as most lenders are unwilling to expose themselves to additional risk.”24 Government-Sponsored Enterprises (GSEs) limit cash-out refinances and HELOCs to “only part of the equity that the owner has on their home,” which is often insufficient to cover the full cost of ADU construction.25 Homeowners also have difficulty obtaining construction loans or renovation financing since “an ADU project timeframe that


is too narrow or in a location with few or no ADUs does not provide an adequate benchmark for lending.”26 Moreover, because these financial products fail to take into account expected rental income that an ADU will generate or value added to the property through the construction of an ADU, owners often are unable to qualify for these traditional modes of financing.

It would seem that unless and until some of these issues are addressed, and private firms in particular are enabled and incentivized to offer ADU-specific products, the paucity of financing will continue to be a major barrier to construction of ADUs.

B. SB 2 Planning Grants

SB 2, or the “Building Homes and Jobs Act,” was enacted on September 29, 2017 to fund affordable housing development.27 Among other things, SB 2 augmented the Government Code to require “a fee of seventy-five dollars ($75) for the recording of any real estate instrument, paper, or notice required or permitted by law,” unless otherwise excepted.28 As it currently stands, seventy percent of the proceeds are “allocated to local government in either an over-the-counter or competitive process,” fifteen percent of the proceeds are allocated to the California Department of Housing and Community Development, ten percent of the proceeds are allocated “to assist the development of farmworker housing,” and five percent of the proceeds are allocated to “administer a program to incentivize the permitting of affordable housing.”29 The funding from SB 2 is intended to help cities and counties accelerate housing production, streamline approval of housing development affordable to owner and renter households at all income levels, facilitate housing affordability for lower and moderate-income level households, promote development consistent with the State Planning Priorities outlined in Government Code section 65041.1, and ensure geographic equity in the distribution and expenditure of funds.30 One of the “Priority Policy Areas” of SB 2 are ADUs, which are encouraged through actions such as outreach, fee waivers, pre-approved plans, website zoning clearance assistance, and other homeowner or finance tools. It also encourages “significantly more residential development in lower density residential areas.”31

C. CalHome Program

The crux of the CalHome program is to assist very low to low-income households to become or remain homeowners. CalHome carves out an “ADU/JADU Program,” defined as

funding “provided to a Locality or Nonprofit Corporation to administer a program to fund the construction, reconstruction, repair, or Rehabilitation of ADUs or [JADUs].”32 Notably, homeowners, if assisted through the ADU/JADU program, are allowed to rent or lease an ADU or JADU unit.33 CalHome funds in support of an ADU/JADU program shall be used for the cost of construction, reconstruction, repair, conversion, or rehabilitation of an ADU/JADU; cost of structural modifications to the existing home necessary to accommodate an ADU or a JADU; cost of building permits and other related government fees, including all fees necessary to build and occupy an ADU or a JADU; cost of an appraisal, architectural, engineering, and other consultant services that are directly related to the construction; non-recurring loan closing costs; and a CalHome activity delivery fee (reasonable and necessary costs incurred by the applicant and associated with the financing, or development, or both, of activities assisted with CalHome program funds).34

D. Regional Early Action Planning (REAP) and Local Early Action Planning (LEAP) Grants

The 2019-20 Budget Act established the Local Government Planning Support Grants Program, of which both REAP and LEAP are a part. The 2019-20 Budget Act provides “a spectrum of support, incentives, resources, and accountability to meet California’s housing goals,” including “local and regional planning grants (LEAP and REAP), pro-housing preference on funding applications, additional funding resources, accountability (penalties for noncompliant housing plans), and reform (collaborative processes to reform regional housing needs).”35

REAP allocates $125 million to regions throughout California for planning activities that will accelerate housing production. The REAP Grant funding is intended to assist regional entities and governments to facilitate housing production and assist local governments in meeting their Regional Housing Need Allocation (RHNA).36 One of the pro-housing policies contemplated by the REAP Grant program is the adoption of ADU ordinances or other mechanisms to reduce barriers for property owners to create ADUs and JADUs.

LEAP allocates $119 million to cities and counties for one-time grant funding to update their planning documents and implement process improvements that will facilitate the acceleration of housing production.37 The grants are provided to local jurisdictions for housing planning, including


developing or improving ADU ordinances in compliance with Government Code section 65852.2.

E. Is This Funding Push Having Its Intended Effect?

On the one hand, ADU permits and, more importantly, completions, have skyrocketed over the past few years. While there were 5,911 ADU permits issued in 2018, a whopping 15,571 were issued in 2019.38 Moreover, ADU completions jumped from 1,984 in 2018 to 6,668 in 2019.39 While this is certainly a positive development, a deeper dive into these numbers shows that “in neighborhoods (census tracts) in the lowest quartile of median income for the state, ADU permitting and completions have lagged, while the highest quartile has seen a disproportionate share of permitting and completions.”40 Likewise, ADU permitting and completions “have lagged in neighborhoods in the lowest quartile of median rent for the state.”41 The Legislature’s push to make financing more readily available has resulted in the completion of more ADUs; however, there is seemingly still a need for additional financing opportunities for low and moderate-income homeowners and renters.

IV. EMERGING LEGAL ISSUES

Given the relative infancy of ADU-related legislation and the havoc caused by the COVID-19 pandemic on litigation timelines, there are very few cases challenging or addressing ADU construction that have worked their way through the courts and even fewer that are published. We have seen, however, early indications of issues that could arise and necessitate court intervention.

A. Has the California Legislature Fully Occupied the Field of ADU Regulation?

The revisions to Government Code section 65852.2, inter alia, eliminated the ability of local agencies to ban ADUs within their borders, established maximum standards that limited local agencies in evaluating a proposed ADU, and provided that any local ADU ordinance that failed to meet these updated requirements shall be “null and void … and that agency thereafter shall apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.”42 Further, state statutory standards must be applied by a local agency evaluating an ADU permit if its own ordinance fails to meet the requirements of Government Code section 65852.2.43 That same statute also states that “no other local ordinance, policy, or regulation shall be the

basis for the denial of a building permit or a use permit under this subdivision.”44 Consider, for example, that a city or county enacts an ordinance regulating ADUs and that a homeowner’s permit is denied under said ordinance. Do the revisions to Government Code section 65852.2 prevent such an ordinance from being enforced or otherwise signal the Legislature’s intent to fully occupy the field of ADU regulation? This appears to be an area subject to judicial challenge, particularly by homeowners who view a local ordinance as more restrictive than those contemplated by Government Code section 65852.2.

To evaluate the question of whether an area is “fully occupied” by general law, one must first consider the Legislature’s “indicia of intent.”45 The facts to weigh when evaluating an “indicia of intent” include:

(1) the subject matter has been fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefits of the locality.46

With regard to Government Code section 65852.2 in particular, there are indica that the Legislature signaled its intent not to occupy the field of ADU law. For example, Government Code section 65852.150 states,

[i]t is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance.47

Government Code section 65852.2 also carves out a number of areas that, by ordinance, a local agency may “provide for the creation of accessory dwelling units,” including “adequacy of water and sewer services, traffic flow, public safety48 or parking, height, setback, landscape, architectural review, maximum size of unit, and standards


that prevent adverse impacts on any real property that is listed in the California Register of Historic Resources.”49

The Legislature’s indication in multiple areas that local agencies may adopt their own ordinances does not appear to signal its intent to occupy the field of ADU legislation. On the contrary, the carve-out of specific areas of governance does give local agencies some latitude in enacting ADU ordinances. This is not to say, however, that local agencies have carte blanche to pass ADU-related ordinances. Government Code section 65852.2(a)(1)(D) sets forth a number of standards with which ADU ordinances “shall” comply. Legal challenges may arise where homeowners view a local ordinance as arbitrary or more restrictive than Government Code section 65852.2.

An interesting offshoot is whether the invalidity of a provision of an ordinance invalidates the ordinance as a whole, or, put another way, whether a non-conforming provision is severable from the ordinance. Consider, for example, a local ordinance that inter alia imposes both a minimum lot size and a maximum size of an ADU. While the latter is permitted under Government Code section 65852.2(a)(1)(B)(i), the former is expressly prohibited under the same statute. Does the inclusion of the impermissible minimum lot size provision invalidate the ordinance as a whole or may that non-conforming provision simply be stricken and the remainder of the ordinance continue in full force and effect? Unfortunately, Government Code section 65852.2 provides little clarity. Government Code section 65852.2(a)(4) states, in part, that,

[i]f a local agency has an existing accessory dwelling unit that fails to meet the requirements of this subdivision, that ordinance shall be null and void and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.

Does this render the entire ordinance null and void? Does it render only that provision null and void while salvaging the remainder of the ordinance? This is seemingly an area ripe for adjudication as ADUs increase in popularity and local agencies push for more local governance.

B. Initial Impact on HOAs

When California leads the nation both in the number of HOAs at 49,200 and the estimated number of residents in those associations at 14,069,000, it is no wonder that

the Legislature views HOAs as fertile ground for ADUs,50 The Legislature’s intent to create affordable housing has encroached on two areas traditionally governed by HOAs through their CC&Rs: the construction of living units on CID properties and the ability of homeowners to rent said properties. As discussed above, two bills in particular, AB 670 and AB 3182, took aim at removing barriers to the construction and leasing of ADUs and JADUs in CIDs. In so doing, it has created potential court challenges by HOAs.

1. The Reasonableness Question(s)

AB 670 prohibits HOAs from “unreasonably restricting” the construction or use of ADUs if otherwise compliant with Government Code sections 65852.2 and 65852.22. Clearly, Civil Code section 5751 does allow HOAs to govern ADUs through their CC&Rs. But to what extent? Or, put another way, when is a CC&R provision governing ADUs considered reasonable versus unreasonable? One area ripe for adjudication are challenges by homeowners to ADU covenants in CC&Rs, and specifically, whether the ADU covenants in CC&Rs are unreasonable and therefore void and unenforceable.

Again, “reasonable restrictions” are those that “do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent with the provisions of section 65852.2 or 65852.22 of the Government Code.”51 This one-size-fits-all definition of “reasonableness” is problematic in that it assumes that all HOAs are created equal. As referenced above, California has over 49,000 HOAs. Each HOA varies, for example, in size, location, and the number of members such that what is reasonable for one HOA may not be reasonable for another. An HOA in a coastal zone, for example, may have more challenges, and thus more restrictions, than one not in a coastal zone. Any reasonableness inquiry will need to take into account the composition and characteristics of the HOA. This “reasonable” inquiry is also problematic as it relates to the impact of ADUs on neighboring members. For example, consider a scenario where the prospective ADU impacts a neighbor’s view or otherwise encroaches on that neighbor’s use or enjoyment of his or her property. Is this enough for an HOA to reasonably deny an ADU application? An HOA’s assessment of an ADU-related application and this “reasonableness” standard appears to become exponentially more complicated when it becomes necessary to take into account a neighboring member’s rights.


Similarly, it remains to be seen how much deference an HOA, and in particular its board, will receive in implementing ADU-related covenants. HOA board members are required to serve in good faith and as an ordinarily prudent person would in a similar situation.52 Pursuant to the doctrine of “judicial deference,” courts will defer to the board’s authority and presumed expertise where the board, upon reasonable investigation, in good faith and with regard for the best interests of the HOA and its members, exercises discretion within the scope of its authority under relevant statutes, covenants, and restrictions to select the means for discharging an obligation to maintain and repair a development’s common areas.53 Subsequent decisions have applied the judicial deference doctrine to actions other than maintenance decisions, such as association architectural decisions, under which an HOA’s decision as to deny or approve an ADU would likely lie.54 The amount of deference given to HOA boards remain to be seen, but will be an important issue to track since each HOA board is uniquely situated to evaluate its HOA’s own unique needs.

Moreover, the Davis-Stirling Act presumes that CC&R provisions are enforceable.55 Historically, a covenant has been enforced unless it (1) violates public policy; (2) bears no rational relationship to the protection, preservation, operation, or purpose of the land against which the declaration is recorded; or (3) otherwise imposes burdens on the affected land that are so disproportionate to the covenants’ beneficial effects that the restriction should not be enforced.56 Indeed, CC&Rs are to be enforced “unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit.”57 This appears to be a far broader evaluation than how the Legislature may envision the assessment by HOAs of this reasonableness question, which in turn is likely to necessitate court intervention. Further, questions regarding reasonableness have been viewed through the lens of whether it benefits the entire community, not simply a particular homeowner.58 For example, one could argue that the infill of a CID increases the burden on the HOA in the form of traffic and common area maintenance, among other matters. Seemingly, a CC&R provision restricting the building and use of an ADU could benefit the HOA membership as a whole while running afoul of Civil Code section 5751. With regard to Civil Code section 5751, there are more questions right now than answers. These ambiguities will certainly be sorted out through litigation in the coming months and years.

2. Recent Legislation Removes Barriers to Leasing of an ADUs in an HOA

More recent legislation has been implemented which curbs an HOA’s ability to govern the rental of ADUs within the CID in an effort to create more affordable housing within a CID. Assembly Bill 3182 (AB 3182) was signed into law on September 28, 2020, and took effect on January 1, 2021. AB 3182 amends inter alia Civil Code sections 4740 and 4741 of the Davis-Stirling Act. AB 3182 specifically targeted “outdated” HOA rules prohibiting HOA members from renting out their homes; however, AB 3182 seemingly creates more questions than answers.

The addition of Civil Code section 4741 impacts the use of ADUs within a CID. Now, an owner of a separate interest in a CID shall not be subject to any provision in an HOA’s governing documents that “prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, [ADU], or [JADU] in that [CID] to renter, lessee, or tenant.”59 Moreover, an HOA shall not adopt or enforce a provision in its governing documents that restricts rentals within the entire CID to less than twenty percent of the homes, though an HOA may adopt or enforce a provision authorizing a higher percentage of separate interest to be rented or leased.60 An HOA may also adopt or enforce a provision in its CC&Rs prohibiting “transient or short-term rental” of a separate property interest for a period of thirty days or less.61 These provisions took effect on January 1, 2021, regardless of whether a CID has revised its governing documents, but all CIDs must amend their governing documents to conform to the new law no later than December 31, 2021.62 A CID that “willfully” violates Civil Code section 4741 shall be liable to the applicant or other party for actual damages and a civil penalty not to exceed $1,000.63

The implementation of Civil Code section 4741 creates a number of issues for CIDs, including many of the same issues raised above regarding judicial deference and what constitutes an “unreasonable restriction” on the renting or leasing of an ADU or JADU. There remain concerns about the financial implications of continued infill in CIDs. CIDs are often designed in anticipation of having a certain number of residents and those same residents are assessed accordingly. Prohibiting HOAs from governing rentals could result in an influx of new residents in the CID, which runs the risk of overburdening HOA resources and amenities. Are HOAs permitted to assess these new renters and/or property owners to account for increased use of HOA resources and amenities


or would this constitute an “unreasonable restriction” on the renting or leasing of an ADU or JADU?

There are also questions about how much control an HOA board has to implement these new restrictions. Often, revisions to CC&Rs require a member vote. In the event that a vote to implement restrictions or amend the CC&Rs to comply with Civil Code section 4751 should fail, it is unclear what recourse an HOA board may have at that point to bring the governing documents into compliance with the statute. It is also unclear whether revisions made to HOA governing documents to bring them into compliance with Civil Code section 4751 apply prospectively or retroactively. For example, Civil Code section 4750, which was amended by AB 3182, states that an owner of a separate interest in a CID shall not be subject to a provision in a governing document prohibiting the rental or leasing of any of the separate interest in a CID unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to their separate interest.64 Does the same hold true for Civil Code section 4741 and bind only those owners who take title after any new amendments are recorded? Finally, HOAs are undoubtedly concerned about the implications of Civil Code section 4741(g), and specifically, what constitutes a “willful” violation of the statute. Potential hurdles to timely implementation of these new provisions and the amendment of governing documents to reflect the same include, without limitation, the HOA membership, interference by or overlap with administrative bodies, and COVID-19 related delays.

These new ADU- and JADU-related laws are a minefield for HOAs and invoke practical issues in their implementation. With more questions than answers at this point, we will undoubtedly see litigation related to Civil Code sections 4741 and 5751, especially as we inch toward the December 31, 2021 deadline to amend HOA governing documents.

V. CONCLUSION

ADU permitting and completion numbers have continued to grow, with completion numbers tripling in the course of one year. Further, it is clear that homeowners are interested in building ADUs. In fact, in a recent survey submitted to all 540 California cities and counties, two-thirds of respondents “perceive a strong appetite among homeowners to add ADUs to their properties.”65 Despite this, the “prevalence of an assortment of barriers tend to limit ADU permits and completions.”66 The most significant barriers to ADU permitting and completion are permitting and construction costs, followed by a lack of awareness and lack of desire, site

physical limitations, and a general disinterest in becoming a landlord.67

To maximize the impact of ADUs on the State’s housing crisis, the Legislature must continue to address costs and fees for ADU development and construction along with availability of financing for the same. Both at the State and local level, there should be a push to partner with banks and private lenders to create ADU specific loans, tools, and programs.

Further, local jurisdictions in particular must continue to educate homeowners in their area. Sixty-three percent of respondents to the above-referenced survey report offering web-based information about ADU development standards, yet many homeowners still seek permitting with little to no knowledge of local building requirements.68 Local jurisdictions can assist by continuing to streamline the process, including through the offering of pre-approved plans. The State can assist by increasing availability of funding to local jurisdictions to assist with further education on ADUs and the construction process. Finally, both the State and local jurisdictions could look to create additional ADU incentives and bonus programs.

One thing is clear: ADUs are here to stay. Expect to see a continued emphasis on ADUs as a housing alternative and a continued evolution of ADU-related law as the Legislature continues to tinker with, and the courts eventually begin to hear challenges to, these ADU-related laws.

Endnotes

1 Cal. Gov’t Code § 65852.150(a)(5).2 § 65852.150(a)(6).3 Cal. Dep’t of Housing and Cmty. Dev., Accessory

Dwelling Unit Handbook 3 (Dec. 2020).4 Id.5 Jeffrey M. Jones, U.S. Remote Workdays Have Doubled

During Pandemic, Aug. 31, 2020, at 2.6 Kevin McElrath, Schooling During the COVID-19

Pandemic, Aug. 26, 2020, at 1.7 Common Interest Developments: Accessory Dwelling Units,

Assemb. B. 670, § I, 2019 Reg. Sess. (Cal. 2019).8 S.B. 13, § 5, 2019 Reg. Sess. (Cal. 2019).9 Id. § 4.10 Id. § 6.11 Assemb. B. 68, § 4, 2019 Reg. Sess. (Cal. 2019).12 § 3.13 Civil Code § 4751(a).


14 § 4751(b).15 Id.16 Karen Chapple, et al., Terner Ctr. & Ctr. for Cmty.

Innovation, Reaching California’s ADUS Potential: Progress to Date and the Need for ADUS Finance, Aug. 2020, at 2.

17 Id.18 https://www.sandiegocounty.gov/content/sdc/pds/bldg/

ADUs_plans.html.19 http://stocktonca.gov/government/departments/

permitCenter/buildADUs.html.20 https://chico.ca.us/sites/main/files/file-attachments/pre-

approved_ADUs_design_catalog.pdf?1595619245.21 Cty. of Santa Cruz Planning Dep’t, Accessory Dwelling

Unit Forgivable Loan Program (Oct. 2019), http://www.sccoplanning.com/Portals/2/County/ADUs/Forgivable%20Loan%20Program.pdf.

22 Cal. Health & Safety Code § 65583(c)(7).23 Chapple, supra note 16, at 5.24 Id. at 3.25 Id.26 Id.27 Building Homes and Jobs Act, S.B. 2, 2017 Reg. Sess.

(Cal. 2017).28 Cal. Gov’t Code § 27388.1(a)(1).29 Cal. Health & Safety Code § 50470(b)(2); California’s

2017 Housing Package, hcd.ca.gov/policy-research/lhp. 30 Id.31 Id.32 CalHome Program Guidelines (2019), Art. 1, § 7716(d).33 Id.34 CalHome Program Guidelines (2019), Art. 1, §§

7716(b), 7743(a)-(f ).35 Regional Early Action Planning Grant Program (REAP)

2020 Notice of Funding Availability, sec. C (Feb. 27, 2020).

36 Regional Early Action Planning (REAP) Grants, https://www.hcd.ca.gov/grants-funding/active-funding/reap.shtml.

37 Local Early Action Planning (LEAP) Grants, https://www.hcd.ca.gov/grants-funding/active-funding/leap.shtml.

38 Chapple, supra, at 6. 39 Id.40 Id. at 8-9, Figure 4.41 Id. at 13, Figure 10.42 Cal. Gov’t Code § 65852.2(a)(6).

43 § 65852.2(a)(4).44 § 65852.2(a)(5).45 Big Creek Lumber Co. v. Cty. of Santa Cruz, 38 Cal. 4th

1130, 1139.46 Sherwin-Williams Co. v. City of L.A., 4 Cal. 4th 893, 898

(1993).47 Cal. Gov’t Code § 65852.150(b).48 § 65852.2(a)(1)(A).49 § 65852.2(a)(1)(B)(i).50 2019-2020 U.S. Nat’l and State Statistical Review for

Cmty. Ass’n Data, https://foundation.caionline.org/wp-content/uploads/2020/08/2020StatsReview_Web.pdf.

51 Cal. Civil Code § 4751(b).52 Cal. Corp. Code § 7231(a).53 Lamden v. La Jolla Shores Clubdominium Homeowners

Ass’n, 21 Cal. 4th 249, 265 (1999).54 Dolan-King v. Rancho Santa Fe Ass’n, 81 Cal. App. 4th

965 (2000).55 Cal. Civil Code § 5975.56 Nahrstedt v. Lakeside Vill. Condominium Ass’n, Inc., 8

Cal. 4th 361, 382 (1994).57 Id.58 Id.59 Cal. Civil Code § 4741(a).60 § 4741(b).61 § 4741(c).62 § 4741(f ).63 § 4741(g)64 § 4740(a).65 Karen Chapple, et al., Terner Ctr. and Ctr. for Cmty.

Innovation, ADUSs in California: A Revolution in Progress (Oct. 2020), at 8, 18.

66 Id.67 Id.68 Id. at 19.


William F. Cole currently serves as an Assistant Solicitor General for the State of Texas, where he represents the State, its agencies, and its officers in complex and high-profile appellate matters. Mr. Cole was previously an associate in the Los Angeles office of Gibson, Dunn & Crutcher LLP, where he practiced in the Appellate & Constitutional Law and Class Actions practice groups. He graduated from the University of Pennsylvania Law School in 2015, and served as a law clerk to the Honorable Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit.

Theane Evangelis is a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. She serves as Co-Chair of the firm’s global Litigation Practice Group and previously served as Co-Chair of the firm’s Class Action Practice Group. Ms. Evangelis is also a member of the Appellate, Labor and Employment, Media, Entertainment, and Technology, and Crisis Management Practice Groups. She joined Gibson Dunn after serving as a law clerk to Justice Sandra Day O’Connor during October Term 2004. Ms. Evangelis has served as lead counsel in a wide range of bet-the-company appellate, constitutional, class action, labor and employment, media and entertainment, and crisis management matters in trial and appellate courts across the country.

Bradley J. Hamburger is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He practices in the firm’s Class Actions, Appellate and Constitutional Law, and Labor and Employment practice groups, and focuses on complex litigation and class actions in both trial courts and on appeal. Mr. Hamburger has defended clients in class actions and appeals across numerous substantive areas of law, including employment, consumer fraud, anti-trust, and products liability. Mr. Hamburger graduated from Harvard Law School in 2009, and served as a law clerk to the Honorable James V. Selna in the U.S. District Court for the Central District of California.

I. INTRODUCTION

Despite billions of dollars in allocated resources, the construction of brand new shelters, and relaxed enforcement of “quality-of-life” ordinances, the crisis of homelessness gripping the State of California has only grown more acute in recent years. More than a thousand persons experiencing homelessness died in 2020 in Los Angeles alone. And a proliferation of dangerous encampments throughout cities has contributed to a sharp uptick in crime affecting homeowners, business owners, and persons experiencing homelessness alike.

What has contributed to the rapid deterioration of conditions on the streets of the Golden State? In this article, we argue that for years municipalities have pursued a failed litigation strategy—consisting of entering into broad, sweeping settlements following setbacks in the course of litigation—that has resulted in entrenching the ever-worsening conditions playing out daily in our cities, and in Los Angeles in particular. That litigation strategy, and the concomitant retreat from enforcement of decades-old, ordinary, municipal laws, reached its apotheosis in

Breaking the Legal Paralysis: Combatting California’s Homelessness Crisis After Martin v. City of Boise1

Billy Cole, Theane Evangelis, and Bradley J. Hamburger


the wake of the Ninth Circuit’s decision in Martin v. City of Boise, which held that municipalities could not issue criminal citations to persons sleeping in public spaces if that jurisdiction has fewer shelter beds available than persons experiencing homelessness.

Following Martin, what can be done in cities that currently lack enough space in shelters to house their entire population of persons experiencing homelessness, but that still wish to ensure that public spaces remain safe and sanitary for all residents? We propose that such cities simply take the courts at their word with respect to the limited scope of the Martin decision, mount a defense to their laws regulating public health and safety, and refuse to capitulate during the course of litigation. Even under Martin, the vast majority of ordinances regulating the public’s use of city streets, sidewalks, and other public areas remain fully constitutional and enforceable—particularly those imposing time, manner, and place restrictions—and cities should not retreat from their defense. Furthermore, Martin has no effect on laws prohibiting drug dealing, violent criminal activity, and conduct that poses environmental and health hazards. Enforcement of municipal law remains an important tool for cities to use in combatting the multi-dimensional problem of homelessness and thereby wresting back their city streets from the scourge of crime, violence, and disease, thus making those cities safer for all citizens—especially those experiencing homelessness. While Martin does create a significant hurdle to curbing the homelessness crisis, it does not mean that municipalities must give up in the face of an increasing threat to public safety. As shown below, elected officials can find no refuge in the Martin decision to justify further inaction in addressing the homelessness crisis, which has torn the social contract asunder.

II. A CRISIS OF MONUMENTAL PROPORTIONS

The crisis of homelessness gripping the State of California is monumental. The most recent count, conducted in 2019, revealed that the number of unhoused Californians is in excess of 150,000 persons, which represents more than a quarter of the entire country’s homeless population—double what one would expect in a State that contains roughly twelve percent of the country’s population.2 Over 66,000 of those individuals reside in Los Angeles County alone.3 And the coronavirus pandemic with its attendant economic downturn promises to make this crisis more acute still. By one estimate, the effects of the pandemic-driven downturn will cause “chronic homelessness” to increase by 68% in California and by 86% in Los Angeles County over the next four years.4

The most troubling aspect of this crisis is the fact that persons experiencing homelessness are at particular risk of death, injury, and disease. In Los Angeles County, deaths among

persons experiencing homelessness have been on the rise every year since 2014, skyrocketing from 630 in 2014 to 1,267 in 2019.5 Preliminary estimates for last year predict another grim milestone for Los Angeles County, with deaths among persons experiencing homelessness up over 26% through July 2020.6 Orange County has been on a similar trajectory, with 330 persons experiencing homelessness dying in 2020, up from just over 200 the year before.7 And in San Francisco, deaths among persons experiencing homelessness jumped by 123% in 2020, from 91 persons between January and September 2019 to 203 persons between January through September 2020.8

For those living on the streets, trapped in encampments, violence and anarchy reign supreme. In San Francisco’s Tenderloin District, violent crime is up 24% with the number of tents packing the streets rising from 173 on March 13, 2020, to 416 in early June 2020.9 Drug dealing and use continues unabated to such a degree that there have been reports of “line[s] of people stretch[ing] down” the streets of San Francisco in what looks “like a soup kitchen line,” but which in reality is a line to acquire narcotics.10 Indeed, “[i]n the Tenderloin, SOMA, and Mid-Market neighborhoods, the homeless congregate in open-air drug markets; dealers wear gloves and masks and sell heroin, fentanyl, and methamphetamine in broad daylight.”11 Residential neighborhoods have not been spared: “longtime residents describe the environment as ‘apocalyptic,’ with encampments, trash, and drug havens in every corner.”12

Los Angeles is no different. In the Skid Row neighborhood of downtown Los Angeles “street gangs from South Los Angeles . . . control the markets for meth, heroin, prostitution, cigarettes, and stolen goods.”13 This is lucrative business: “the sales of meth, heroin, and cocaine on Skid Row add up to a $200 million annual enterprise, fueling a massive black market in everything from stolen bicycle parts to human organs.”14 As a consequence of this criminal activity, crimes against persons experiencing homelessness in Los Angeles increased by 24% in 2019, with a 19% increase in serious violent crime, including homicide, rape, robbery, aggravated assault, burglary, motor vehicle theft, larceny-theft, and arson.15 In Los Angeles in 2020, “fires related to homeless [we]re up 82% over the last year,” with many of the fires attributable to arson being committed by one person experiencing homelessness against the tent of another, often due to disputes over money and drugs.16

The encampments in which many unhoused persons reside have also contributed to a burgeoning public-health crisis, serving as incubators for diseases such as typhus, typhoid fever, and tuberculosis.17 In Los Angeles, mountains of trash, rotting food, and human waste around encampments have contributed to a rodent infestation that, in turn, has precipitated a sharp rise


in flea-borne typhus—up from eighteen cases in 2009 to 174 in 2018.18 These problems have only gotten more severe in recent months, as the Los Angeles City Sanitation Department has reportedly ceased conducting regular cleanups of encampments due to the coronavirus pandemic, and “[t]he result is that some city streets are littered with months of uncollected trash that’s not only attracting rodents and fleas—a longstanding problem—but now maggots are covering some sidewalks and entering buildings.”19

These public-health problems are not unique to Los Angeles. In Orange County, a February 2018 clean-up of a two mile-long encampment along the Santa Ana River that hosted more than 700 people uncovered “404 tons of debris, 13,950 needles, and 5,279 pounds of waste,” including human waste, propane, and pesticides.20 And in San Francisco, hundreds of thousands of used needles litter the city’s streets—“164,264 needles [were recovered] in August [2018] alone.”21 Along with these syringes, so much human waste has accumulated on the streets that the city has established a “proactive human waste” unit to clean it up daily, appropriating over $830,977 to tackle the city’s “feces problem.”22

Local residents, business owners, and visitors have not been spared from the chaos on the streets. During 2020, the number of encampments swelled throughout Los Angeles, popping up everywhere from empty parking lots to freeway overpasses, from beaches to golf courses.23 Residents who live near these encampments complain about a proliferation of trash, drug use, and tents.24 One business owner complained about individuals tapping into his restaurant’s water and electricity supply.25 A local resident reported observing a woman who routinely fights with her boyfriend in public while naked.26 A local homeowner has likewise described “several incidents when I am afraid to leave my home” including an “incident with someone very high and mentally unstable on my driveway when I came home from grocery shopping that I was afraid to get out of my car and unload my groceries into my OWN HOME.”27 That resident stated that, as a consequence of this conduct, “I fear for my life.”28

Still another resident described an encounter with an individual who threatened to kill her and then went “on a spree and smash[ed] the windows, hoods, and roofs of at least half a dozen cars—with his body.”29 Yet another said that “her 14-pound dog was attacked by a resident’s much larger dog as they walked past [a] shelter entrance.”30 And conditions have deteriorated so much on the world-famous Venice Beach boardwalk that the owner of a Ben and Jerry’s ice cream shop has decided to close the business due to the proliferation of drugs

and crime, which make it impossible to attract customers or to provide a safe work site for employees.31

III. LEGAL IMPEDIMENTS TO CHANGE

The crisis of homelessness afflicting cities throughout California is complex, multifaceted, and has no quick fixes. But the legal impediments currently in place operate only to entrench the status quo and hinder necessary change. Sadly, this status quo is in large part the product of a self-inflicted wound, as municipalities—most notably Los Angeles—have capitulated to lawsuits designed to restrict their ability to enforce basic public safety laws. Indeed, over the past two decades, a combination of lawsuits, court decisions, and subsequent legal settlements have effectively created a de facto constitutional right to camp in public spaces and to store in that encampment unlimited amounts of personal property. This web of legal precedents and settlements has created municipal paralysis, leaving California’s local governments unable or unwilling to act and resulting in the abandonments of large swaths of cities to encampments that breed violence, crime, and disease.

A. Jones v. City of Los Angeles: Constitutionalizing the Right to Public Camping in Los Angeles

The story begins in 2006 with Jones v. City of Los Angeles.32 In Jones, six persons experiencing homelessness sued the City of Los Angeles, alleging that the City’s enforcement of municipal ordinances prohibiting “sit[ting], l[ying], or sleep[ing] in or upon any street, sidewalk or other public way” violated the Eighth Amendment of the United States Constitution, which prohibits “Cruel and Unusual Punishment.”33 The United States District Court for the Central District of California granted Los Angeles’s motion for summary judgment, reasoning that enforcement of this commonplace municipal ordinance did not violate the Eighth Amendment because the ordinance penalized the plaintiffs for their “conduct,” not for the “status” of being homeless, as the plaintiffs had argued.34

But in a first-of-its-kind opinion, the United States Court of Appeals for the Ninth Circuit reversed the district court’s decision.35 Over a dissent, the panel majority held that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available [shelter] beds, the City may not enforce” its public-camping ordinance “at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public.”36 The court reasoned that persons experiencing homelessness “are in a chronic state that may have been acquired ‘innocently or involuntarily’” and that “sitting, lying, and sleeping . . . are universal and unavoidable consequences of being human.”37 As


a result, the Ninth Circuit held, because “human beings are biologically compelled to rest,” “criminalizing sitting, lying, and sleeping . . . criminaliz[es]” the plaintiffs’ “status as homeless individuals.”38 Accordingly, the court held that the Eighth Amendment prohibits the State both from “making it an offense to be idle, indigent, or homeless in public spaces” and “criminaliz[ing] conduct that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the streets of Los Angeles’s Skid Row.”39

The Jones decision portended a sea change in the law for cities within the Ninth Circuit’s jurisdiction, most of which have had public-camping ordinances on the books for decades with nary a concern about their constitutionality. The broad rationale of the Ninth Circuit’s decision would have likely swept each of these ordinances off the books, but for the fact the parties in Jones entered into a settlement agreement following the Ninth Circuit’s decision, which resulted in the Ninth Circuit vacating its decision in Jones.40 While the Ninth Circuit’s order vacating its opinion in Jones meant that cities throughout the Ninth Circuit would no longer be bound by the court’s sweeping and unprecedented decision, Los Angeles, as party to the settlement, would be. The settlement agreement essentially bound Los Angeles to the core holding of the Jones opinion. Indeed, the City agreed that it would not enforce its public-camping ordinance between the hours of 9:00 p.m. and 6:00 a.m.41 And the City further promised that this policy of nightly non-enforcement would remain in effect until the City constructed an additional 1,250 units of permanent supportive housing for persons experiencing homelessness.42 Thus, following the Jones settlement, the Ninth Circuit’s holding that cities may not prohibit public camping effectively became the law, at least in Los Angeles.

B. Lavan & Mitchell: Establishing a Constitutional Right to Store Property in Public Spaces

Whereas the Jones case achieved, in effect, the establishment of a de facto constitutional right to camp in public spaces—albeit only in Los Angeles and only through a court-approved settlement agreement—the next constitutional frontier was fast approaching. The epicenter of this litigation was, again, Los Angeles. In Lavan v. City of Los Angeles, eight persons experiencing homelessness sued the City of Los Angeles alleging that the City’s seizure and destruction of their personal property, left unattended in public areas, violated their Fourth Amendment right to be free of unreasonable searches and seizures and their Fourteenth Amendment “procedural due process” rights.43 The district court agreed with the plaintiffs and issued an injunction prohibiting the City from (a) seizing property in Skid Row “absent an objectively reasonable belief

that it is abandoned, presents an immediate threat to public health and safety, or is evidence of a crime, or contraband” and (b) “destr[oying] [such] seized property without maintaining it in a secure location for a period of less than 90 days,” “[a]bsent an immediate threat to public health or safety.”44

Over a dissenting opinion, the Ninth Circuit affirmed. The panel refused to apply the Fourth Amendment’s traditional “reasonable expectation of privacy” test and instead held that “by seizing and destroying [Plaintiffs’] unabandoned legal papers, shelters, and personal effects, the City meaningfully interfered with [Plaintiffs’] possessory interests in that property.”45 To avoid the question whether it was reasonable for the City to seize items left unattended on the street, the court collapsed the inquiry and concluded that “even if the seizure of the property would have been deemed reasonable had the City held it for return to its owner instead of immediately destroying it, the City’s destruction of the property rendered the seizure unreasonable.”46 The court further held that “homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment,” and that the City violated the plaintiffs’ Fourteenth Amendment procedural due process rights by failing to provide them with “notice” and an “opportunity to be heard” before it “seized and destroyed their property.”47

While the court in Lavan was careful to disclaim the notion that the case “concern[ed] any purported right to use public sidewalks as personal storage facilities,”48 litigants and lower courts did not see it that way. Four years later, four plaintiffs sued the City of Los Angeles, alleging that the City had been engaged in a pattern and practice of unconstitutionally seizing their property incident to arrest in violation of the Fourth and Fourteenth Amendments.49 The district court agreed, applied Lavan, and issued a preliminary injunction enjoining the City from “[c]onfiscating property in Skid Row or its surrounding areas, incident to an arrest or as part of a cleanup of an area where homeless people are located, absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, is evidence of a crime, or is contraband.”50

The City subsequently filed a motion for clarification, seeking further guidance from the district court on the scope of its injunction. In particular, the City sought clarity as to whether the injunction prohibited the City from seizing “bulky items”—such as sofas, appliances, and sheds—that were left unattended on the streets, given that a recent amendment to the Los Angeles Municipal Code specifically authorized the City to seize and destroy such items.51 The court “determined that it need not provide clarification” on that issue but went on to state that “[t]here is no exception [in its injunction] for bulky items” and if


a bulky item “does not pose” an “immediate threat to public health or safety” “then it must not be seized.”52

Thereafter, Los Angeles settled Mitchell. Through the May 2019 settlement agreement, the City promised that, for a three-year period, it would not “seize property as part of a cleanup of an area where homeless people’s property is located, absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, is evidence of a crime, or is contraband.”53 The City further agreed that it would provide “at least 24 hours advance notice” of any encampment clean up and then “provide a 30-minute warning and opportunity for individuals to remove property when a cleanup is imminent on any block about to be cleaned.”54 As the Los Angeles Times summarized, as a result of this settlement persons experiencing homelessness “now have the right to keep a nearly unlimited amount of possessions with them on the sidewalks of skid row.”55

C. Martin: The Return of Jones

While the effects of Jones and Mitchell settlements may have been cabined to Los Angeles, it would not stay that way for long. In Martin v. City of Boise, six persons experiencing homelessness sued the City of Boise, Idaho, alleging that their citations under Boise’s public-camping ordinances violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.56 The United States District Court for the District of Idaho granted the City of Boise’s motion for summary judgment on jurisdictional grounds, holding that the plaintiffs lacked standing to pursue these Eighth Amendment claims.57

But the Ninth Circuit reversed. After disposing of the standing issue, the panel proceeded to the merits of the plaintiffs’ Eighth Amendment claim—even though it was not addressed by the district court in the first instance. Expressly invoking the since-vacated Jones decision, the court held: “we agree with Jones’s reasoning and central conclusion . . . and so hold that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”58 From a smattering of plurality, concurring, and dissenting opinions in a 1960s United States Supreme Court case, the Ninth Circuit distilled the principle that “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”59 The Ninth Circuit reasoned that sleeping, lying, and sitting in public “is involuntary and inseparable from status—they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.”60

Apparently recognizing the startling breadth of the legal principle just announced, the Ninth Circuit immediately set to work trying to cabin its holding. Declaring that its “holding is a narrow one,” the court stated that it was “in no way dictat[ing] to the city that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.”61 The court further explained in a footnote that its holding “does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.”62 And in that same footnote the court stated that it did not mean to “suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside,” noting that “[e]ven where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” along with “an ordinance barring the obstruction of public rights of way or the erection of certain structures.”63 Instead, the court claimed that it “h[e]ld only” that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”64

Following the panel’s decision, the City of Boise filed a petition for rehearing en banc asking the full Ninth Circuit to rehear the case, but that petition was denied over two separate dissents. The principal dissent, authored by Judge Milan D. Smith and joined by five other judges, explained that the panel’s decision “conflicts with reasoning underlying the decisions of other appellate courts” that have rejected Eighth Amendment challenges to laws banning similar purportedly involuntary conduct.65 Judge Smith’s dissent also emphasized the consequences of the court’s decision, which “leaves cities with a Hobson’s choice: They must either undertake an overwhelming financial responsibility to provide housing for or count the number of homeless individuals within their jurisdiction every night, or abandon enforcement of a host of laws regulating public health and safety.”66 But as Judge Smith explained, this choice is illusory: “Given the daily fluctuations in the homeless population, the panel’s opinion would require this labor-intensive task be done every single day,” which is “impossible” since even with thousands of volunteers devoting countless hours, it still takes three days to perform an annual count in Los Angeles—and even then “not everybody really gets counted.”67

Following the Ninth Circuit’s refusal to rehear the case, the City of Boise sought review in the United States Supreme Court. In addition to pointing out that the Ninth Circuit’s decision was inconsistent with the decisions of other federal courts of appeals and a decision from the California Supreme Court, the City


explained how the Ninth Circuit’s decision, if left undisturbed, would undermine the ability of state and local governments to protect public health and safety and would be unworkable in practice.68 The City’s petition for certiorari was supported by a diverse range of amici, including seven states, forty-one cities and counties from California, eight municipal, county, or regional organizations collectively representing tens of thousands of cities, towns, and counties, five law enforcement groups, three homelessness services providers, and eleven business groups.69 According to the New York Times, the twenty amicus briefs supporting the City’s certiorari petition “may have set a record for the number of such filings at this stage of a Supreme Court case.”70 Yet on December 16, 2019, the Supreme Court denied the City of Boise’s certiorari petition without comment.71

IV. A PATH FORWARD

In the wake of the U.S. Supreme Court’s refusal to hear Martin v. City of Boise, many cities, feeling as if they have little choice in the matter, have simply given up enforcement of their public-camping ordinances, with some going so far as establishing city-sanctioned encampments.72 This is not the answer. A policy of non-enforcement is precisely what has led to—and exacerbated—the ever-worsening conditions on city streets throughout California. And what is truly cruel and unusual is consigning those experiencing homelessness to living in dangerous encampments under the misguided notion that the U.S. Constitution requires cities to stand on the sidelines, powerless to address their unchecked growth and the dangerous conditions that have arisen around them.

While the homelessness crisis is undoubtedly a multivariate problem—implicating issues of housing,73 mental illness,74 and addiction75—to break the legal paralysis and ensure that city streets are safe and sanitary for all, enforcement of longstanding municipal laws regulating public health and safety must be part of the equation. After all, it is axiomatic that the law has both “direct” and “indirect” effects on the behavior of those subject to it, shaping their conduct accordingly.76 The current state of affairs perfectly illustrates this principle, with the erosion of the social contract in our cities dovetailing with the non-enforcement of municipal law.77 It is no answer to say that encampments should be permitted under some flawed conception of “liberty.” The statistics described above paint a clear picture: the unhoused living in encampments stare down death, violence, and disease on a daily basis.78

Importantly, the Martin decision does not stand in the way of local governments taking concrete and meaningful steps to restore safe, clean public spaces to their cities, while at the same time protecting the rights of all citizens. Indeed, the

Ninth Circuit in Martin took pains to emphasize that local governments may enforce ordinances “prohibiting sitting, lying, or sleeping outside at particular times or in particular locations.”79 The same is true, the court noted, of “an ordinance barring the obstruction of public rights of way or the erection of certain structures.”80 Likewise, where an individual does “have access to adequate temporary shelter . . . but . . . choose[s] not to use it,” ordinances regulating public camping may be enforced.81 Furthermore, Martin concerned only the constitutionality of ordinances imposing criminal penalties, such as misdemeanors; it says nothing about the constitutionality of ordinances imposing civil penalties for public camping.82 Accordingly, post-Martin, local governments can and should rely on time, manner, and place restrictions to regulate and contain the explosive growth of encampments. Moreover, there is nothing in Martin that prevents local governments from distinguishing between camping and other illegal conduct, such as drug dealing, assaults, theft, pollution, and other violent criminal activity when seeking to enforce the law. With Martin on the books, municipal governments should be more vigilant than ever in policing and prosecuting such conduct to secure the public health and safety. A failure of enforcement under these circumstances cannot be laid at the feet of the Ninth Circuit’s decision in Martin; the responsibility lies solely with elected officials.

To be sure, any ordinance should be carefully crafted and narrowly tailored with the advice of counsel. And municipalities should be prepared to defend those ordinances in court against a constitutional challenge. But local governments should not be hamstrung by the Ninth Circuit’s decision in Martin, which styled itself as a modest and “narrow” decision that merely declared unconstitutional a broadly-worded ordinance attaching criminal penalties to unauthorized public camping. Some cities have already recognized this. In San Rafael, California, for instance, the City has observed that the Martin decision does not forbid cities from regulating encampments through time, manner, and place restrictions.83 So too has the City of Arcadia, which has signaled an intent to update its public-camping laws to “identify allowable places, times, and manners for involuntary camping.”84

Federal district courts have also recognized the limits of the Martin decision. In Young v. City of Los Angeles, for example, the court rejected a plaintiff ’s argument that he had stated an Eighth Amendment claim under Martin based on the allegation that “the City had been depriving him of his right to sleep on public streets in Los Angeles for the past three years by taking down encampments and forcing him to move.”85 The court explained that, under Martin “the Eighth Amendment only bars the City from criminally prosecuting Plaintiff for sleeping on public streets when he has no other place to go to” and that


“[c]ourts following Martin have declined to expand its holding beyond the criminalization of homelessness.”86 While the plaintiff alleged that “officers have written false tickets or reports regarding Plaintiff failing to take down a tent or that Plaintiff was loitering,” such allegations were insufficient because “Plaintiff does not allege he was criminally prosecuted or sanctioned based on these false tickets or reports.”87 Furthermore, the court added that “it is all not clear whether the laws these citations were based on would be barred by the Eighth Amendment because an ordinance that prohibits tenting or loitering at particular times or particular locations may be permissible.”88

Young is not an outlier. Other federal district courts in California are in agreement about the limited scope of Martin. For example, in Le Van Hung v. Schaaf, a district court in the Northern District of California held that the City of Oakland did not run afoul of Martin by “clean[ing] and clear[ing]” a park where an encampment was located.89 The court noted that cleaning and clearing a park did not require the City to arrest the plaintiffs, and “while Martin limits localities’ ability to arrest their homeless residents for the act of living in the streets when there is nowhere else for them to go, it does [not] create a right for homeless residents to occupy indefinitely any public space of their choosing.”90

Similarly, in Housing is a Human Right Orange County v. County of Orange, a district court in the Central District of California held that the City of San Clemente could not be held to have violated Martin based upon the allegation that its officers threatened persons experiencing homelessness with arrest.91 Mere threats were insufficient: the Martin decision “require[s] the initiation of the criminal process to state a claim for damages for an Eighth Amendment violation.”92 And in Mahoney v. City of Sacramento, a district court in the Eastern District of California held that Sacramento did not violate Martin by removing a portable toilet from an encampment, reasoning that “it is not a necessary corollary that the same right” to “engag[e] in involuntary, life-sustaining actions on public property” is at issue with respect to “the removal of [a] portable toilet.”93

As the foregoing authorities indicate, local governments should not retreat from enforcement of municipal law in the wake of Martin. Nor does Martin mean that cities should capitulate in the face of setbacks during litigation, as the City of Los Angeles arguably did in Jones and Mitchell. In addition to entrenching and exacerbating the status quo, these settlements have operated in practice to blur accountability by “providing politicians some cover for their lack of solutions, [and] allowing them to ‘hide behind a federal judge.’”94 But the public must be able to hold elected officials accountable at the ballot box, and the pattern of

litigation followed by settlement simply allows elected officials to pass the buck by laying the blame for inaction on the federal courts. There should be no such excuses after Martin. After all, federal district courts in California have taken the Ninth Circuit at its word and interpreted Martin narrowly, affording the government ample room to manage the homelessness crisis. And Martin certainly provides no grounds for local governments to abdicate their responsibility to vigorously enforce the portions of its criminal and civil code outlawing violent crime, drug dealing and use, and conduct creating environmental or other public health hazards. To be sure, the Martin decision is likely to be wielded by some to thwart city efforts to tackle the complex issue of homelessness.95 But as post-Martin decisions indicate, local governments may find an ally in California’s federal courts, and they should not shrink from their duties to protect the rights of all residents to have safe and sanitary public areas.

Endnotes

1 Theane Evangelis and Bradley J. Hamburger are appellate and general litigation partners in the Los Angeles office of Gibson, Dunn & Crutcher LLP. William F. Cole is an associate in the Los Angeles office of Gibson, Dunn & Crutcher LLP who practices in the Appellate and Constitutional Law practice group. Ms. Evangelis, Mr. Hamburger, and Mr. Cole were counsel to the City of Boise in the United States Supreme Court in Martin v. City of Boise.

2 The U.S. Dep’t of Housing & Urban Dev., The 2019 Annual Homeless Assessment Report (AHAR) to Congress 12 (2019), https://www.huduser.gov/portal/sites/default/files/pdf/2019-AHAR-Part-1.pdf; Quick Facts California; United States, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/CA,US/PST045219 (stating that, as of July 2019, California had a population of 39,512,223 and the United States a population of 328,239,523).

3 L.A. Homeless Servs. Auth., Greater Los Angeles Homeless Count 2020, 4 (2020), https://www.lahsa.org/documents?id=4558-2020-greater-los-angeles-homeless-count-presentation.

4 Economic Roundtable, Locked Out: Unemployment & Homelessness in the Covid Economy 3 (2021), https://economicrt.org/wp-content/uploads/2021/01/Locked-Out.pdf.

5 L.A. Cty. Dep’t of Public Health, Recent Trends in Mortality Rates & Causes of Death Among People Experiencing Homelessness in Los Angeles County 6


Report Says, L.A. Times (June 3, 2019), https://www.latimes.com/local/lanow/la-me-ln-rats-homelessness-city-hall-fleas-report-20190603-

story.html.19 Joel Grover & Josh Davis, Maggots, Rodents, and Fleas: LA’s

Garbage Problem Is Getting Worse During the Pandemic, NBC L.A. (Oct. 20, 2020), https://www.nbclosangeles.com/investigations/maggots-rodents-fleas-los-angeles-garbage-problem-trash-homeless/2446368/.

20 Anh Do, ‘Eye-Popping’ Number of Hypodermic Needles, Pounds of Waste Cleared from Orange County Riverbed Homeless Encampment, L.A. Times (Mar. 10, 2018), https://www.latimes.com/local/lanow/la-me-ln-riverbed-debris-20180310-story.html.

21 Thomas Fuller, Life on the Dirtiest Block in San Francisco, N.Y. Times (Oct. 8, 2018), https://www.nytimes.com/2018/10/08/us/san-francisco-dirtiest-street-london-breed.html.

22 Id.; Aria Bendix, San Francisco Has a ‘Poop Patrol’ to Deal with Its Feces Problem, and Workers Make More than $184,000 a Year in Salary and Benefits, Bus. Insider (Aug. 24, 2018), https://www.businessinsider.com/san-francisco-poop-patrolemployees-make-184000-a-year-2018-8.

23 Some Ask if City is Doing Enough to Keep Angelenos Experiencing Homelessness Safe in Wake of Pandemic, CBS L.A. (Aug. 12, 2020), https://losangeles.cbslocal.com/2020/08/12/some-ask-if-city-is-doing-enough-to-keep-angelenos-experiencing-homelessness-safe-in-wake-of-pandemic/; see also Itay Hod, Homeless Encampments Swell During Pandemic, Spectrum News 1 (Oct. 10, 2020), https://spectrumnews1.com/ca/la-west/homelessness/2020/10/10/homeless-encampments-reach-unprecedented-levels-amid-covid-19 (“The number of tents has mushroomed over the last six months, from a cluster of structures to a full-blown tent city”); Joel Grover & Josh Davis, Homeless Encampments Spread to Beaches, Golf Courses As City Takes Hands-Off Approach, NBC L.A., (Sept. 4, 2020) https://www.nbclosangeles.com/investigations/omeless-encampments-spread-to-beaches-golf-courses-as-city-takes-hands-off-approach/2423332/.

24 Rob Hayes, Signs of Homelessness in Los Angeles Growing Worse During Coronavirus Pandemic, ABC 7 L.A., (July 7, 2020), https://abc7.com/los-angeles-homeless-crisis-la-homelessness-during-coronavirus-covid-19-and/6305357/.

25 Id. 26 Id.

(2021), http://www.publichealth.lacounty.gov/chie/reports/HomelessMortality2020_CHIEBrief_Final.pdf.

6 Id. at 12.7 Ben Brazil, More Homeless Orange County Residents Died

Last Year than Any Other, Coroner Says, L.A. Times (Jan. 7, 2021), https://www.latimes.com/california/story/2021-01-07/homeless-deaths-orange-county.

8 Marisa Kendall, Despite Protections, Deaths Surge in Bay Area Homeless Communities, The Mercury News (Nov. 1, 2020), https://www.mercurynews.com/2020/11/01/despite-protections-deaths-surge-in-bay-area-homeless-communities/.

9 Bob Egelko, ‘Lives Are in Danger’: Lawsuit Argues SF Needs to Clean up the Tenderloin as Coronavirus Spreads, S.F. Chron. (May 5, 2020), https://www.sfchronicle.com/bayarea/article/Lawsuit-San-Francisco-needs-to-clean-up-the-15245770.php; Heather Knight, ‘It’s Devastating’: The Tenderloin Sinks Deeper Into Misery, and No One is Coming to the Rescue, S.F. Chron. (June 6, 2020), https://www.sfchronicle.com/bayarea/heatherknight/article/It-s-devastating-The-Tenderloin-sinks-15321043.php.

10 Knight, supra note 9.11 Christopher F. Rufo, Chaos By the Bay, City J. (Apr.

14, 2020), https://www.city-journal.org/san-francisco-experiment-in-lawlessness.

12 Id.13 Christopher F. Rufo, The Moral Crisis of Skid Row, City J.

(Feb. 15, 2020), https://www.city-journal.org/skid-row-los-angeles.

14 Id.15 Grace Matheny, Crimes Against Homeless People Increased

245 in 2019 While Overall Crime Decreased, Crime Data Shows, ABC 7 (Jan. 14, 2020), https://abc7.com/lapd-crime-stats-data/5849457/.

16 Joel Grover & Josh Davis, Venice Beach Up in Flames: Frequent Homeless Tent Fires Threaten Residents & Tourists, NBC 4 (Oct. 10, 2020), https://www.nbclosangeles.com/investigations/venice-beach-up-in-flames-frequent-homeless-tent-fires-threaten-residents-and-tourists/2442123/.

17 Anna Gorman & Kaiser Health News, Medieval Diseases Are Infecting California’s Homeless, The Atlantic (Mar. 8, 2019), https://www.theatlantic.com/health/archive/2019/03/typhustuberculosis-medieval-diseases-spreading-homeless/584380/.

18 Cal. Dep’t of Pub. Health, Human Flea-Borne Typhus Cases in Cal.1 (2019); Dakota Smith & David Zahniser, Filth From Homeless Camps is Luring Rats to L.A. City Hall,


27 Edward Ring, While Venice Beach Residents Under Lockdown, Homeless and Encampments Grow and Thrive, Cal. Globe (Mar. 26, 2020), https://californiaglobe.com/section-2/while-venice-beach-residents-under-lockdown-homeless-and-encampments-grow-and-thrive/.

28 Id.29 Id.30 Id.31 Koco McAboy, Business Owner on Venice Boardwalk Shutting

Down Shop After Rise in Crime and Drugs in Area, Fox 11 L.A. (Jan. 29, 2021), https://www.foxla.com/news/business-owner-on-venice-boardwalk-shutting-down-shop-after-rise-in-crime-and-drugs-in-area.

32 444 F.3d 1118 (9th Cir. 2006), vacated by 505 F.3d 1006 (9th Cir. 2007).

33 Id. at 1122–25. 34 Id. at 1125.35 Id. at 1138.36 Id.37 Id. at 1136 (quoting Robinson v. Cal., 370 U.S. 660,

(1962)).38 Id. at 1136–37. 39 Id. at 1137. 40 Jones v. City of L.A., 505 F.3d 1006 (9th Cir. 2007).41 Jones v. City of L.A. Settlement Agreement, https://

veniceupdate.com/wp-content/uploads/2018/06/Jones-Settlement.pdf.

42 Id.43 Lavan v. City of L.A., 693 F.3d 1022, 1024–26 (9th Cir

2012).44 Id.45 Id. at 1030.46 Id.47 Id.48 Id. at 1033.49 Mitchell v. City of L.A., No. 2:16-cv-01750, 2016 WL

11519288, at *1 (C.D. Cal Apr. 13, 2016).50 Id. at *7.51 Mitchell v. City of L.A., No. 2:16-cv-01750, 2017 WL

10545079, at *2 (C.D. Cal. Sept. 25, 2017).52 Id. at *2-*4.53 [Proposed] Stipulated Order of Dismissal, Ex. A, ¶ 4(b)

(Settlement and Release Agreement), Mitchell v. City of L.A., No. 2:16-cv-01760 (C.D. Cal. May 29, 2019), ECF No. 118-1.

54 Id.

55 A Court Decision Letting Homeless People Keep All Their Belongings Helps No One, Times Editorial Bd., L.A. Times (May 31, 2019), https://www.latimes.com/opinion/editorials/la-ed-mitchell-homeless-settlement-20190531story.html.

56 Martin v. City of Boise, 920 F.3d 584, 606 (9th Cir. 2019).57 Id. at 607–08. 58 Id. at 604.59 Id. at 616.60 Id. at 617.61 Id. (quoting Jones, 444 F.3d at 1138).62 Id. at 617 n.8 (emphasis in original).63 Id. (emphasis added). 64 Id. at 617. 65 Id. at 593 (Smith, J., dissenting).66 Id.at 594.67 Id. 68 Petition for a Writ of Certiorari at 13–35, City of Boise v.

Martin, 140 S. Ct. 674 (2019) (No. 19-247).69 See generally City of Boise, Idaho v. Martin, SCOTUSblog,

https://www.scotusblog.com/case-files/cases/city-of-boise-idaho-v-martin/ (listing and linking amicus briefs in support of certiorari petition).

70 Adam Liptak, Supreme Court Won’t Revive Law Barring Homeless People From Sleeping Outdoors, The N.Y. Times (Dec. 16, 2019), https://www.nytimes.com/2019/12/16/us/supreme-court-idaho-homeless-sleeping.html.

71 City of Boise v. Martin, 140 S. Ct. 674 (Mem) (2019).72 Emilie Raguso, Berkeley Mayor Vows to Set Up Sanctioned

Homeless Camp as Willard Park Conditions Worsen, Berkeleyside (Sept. 4, 2020), https://www.berkeleyside.com/2020/09/04/berkeley-mayor-vows-to-set-up-sanctioned-homeless-camp-as-willard-park-conditions-worsen; Sarah Ravani, Sanctioned Homeless Encampments: Oakland and Berkeley Leaders Pay for Safer Spaces, S.F. Chron. (Feb. 15, 2020), https://www.sfchronicle.com/bayarea/article/Sanctioned-homeless-encampments-Oakland-and-15058546.php; Jon Kawamoto, Berkeley to Set Up Sanctioned Homeless Encampment, The Mercury News (Jan. 22, 2020), https://www.mercurynews.com/2020/01/22/berkeley-approves-plan-for-homeless-camp-program/; Anna Scott, Could the West LA VA’s Tent City be a Model for Bringing Relief to LA’s Unhoused?, KRCW (Sept. 2, 2020), https://www.kcrw.com/news/shows/greater-la/homeless-south-la-shooting-transit/tent-city-west-la-va.

73 See e.g., Alfred M. Clark III, Homelessness & the Crisis of Affordable Housing: The Abandonment of a Federal Affordable


Housing Policy, 25 J. Affordable Housing & Cmty. Dev. L. 85, 92–95 (2016); Nat’l Law Ctr. on Homelessness & Poverty, No Safe Place: The Criminalization of Homelessness in U.S. Cities 14 (2014).

74 Doug Smith & Benjamin Oreskes, Are Many Homeless People in L.A. Mentally Ill? New Findings Back the Public’s Perception, L.A. Times (Oct. 7, 2019), https://www.latimes.com/california/story/2019-10-07/homeless-population-mental-illness-disability (noting that an LA Times investigation revealed that 51% of those living on the streets suffered from mental illness).

75 Heather MacDonald, San Francisco, Hostage to the Homeless, City J. (Oct. 5, 2019), https://www.city-journal.org/san-francisco-homelessness; Christopher F. Rufo, The Moral Crisis of Skid Row, City J. (Feb. 15, 2020), https://www.city-journal.org/skid-row-los-angeles.

76 Robert E. Scott, The Limits of Behavioral Theories of Law & Social Norms, 86 Va. L. Rev. 1603, 1603–04 (2000); Richard H. McAdams, The Origin, Development, & Regulation of Norms, 96 Mich. L. Rev. 338, 349 (1997).

77 See Christopher F. Rufo, Chaos By the Bay, City J. (Apr. 14, 2020), https://www.city-journal.org/san-francisco-experiment-in-lawlessness (describing the rise in lawlessness in San Francisco as coinciding with a city policy described as “decarcerate decriminalize, and depolice”).

78 Supra Section I.79 Martin v. City of Boise, 920 F.3d 584, 617 n.8 (9th Cir.

2019).80 Id.81 Id.82 But see Blake v. City of Grants Pass, No. 1:18-cv-01823, 2020

WL 4209227, at *9–*10 (D. Or. July 22, 2020) (holding that Martin’s Eighth Amendment analysis applies to bar civil penalties, such as fines, for violating a public camping ordinance).

83 Martin v. Boise, City of San Rafael (Jan. 27, 2020), https://www.cityofsanrafael.org/martin-v-boise/.

84 Office of the City Manager, City of Arcadia, California, Staff Report Regarding Ordinance No. 2374 Amending Chapter 9 of The Arcadia Municipal Code Relating to Camping and Storage of Personal Property on Public Property and Determining the Ordinance is Categorically Exempt Under the California Environmental Quality Act (“CEQA”) 30 (2021), https://www.arcadiaca.gov/2021-02-16_CC_Meeting_Agenda.pdf.

85 Young v. City of L.A., No. 2:20-cv-00709, 2020 WL 616363, at *5 (C.D. Cal. Feb. 10, 2020).

86 Id.87 Id.88 Id. (citing Martin v. City of Boise, 920 F.3d 584, 617 n.8

(9th Cir. 2019).89 No. 19-cv-01436, 2019 WL 1779584, at *4 (N.D. Cal Apr.

23, 2019); see also Shipp v. Schaaf, 379 F. Supp. 3d 1033, 1037 (N.D. Cal. 2019) (“the City’s decision to require Plaintiffs to temporarily vacate their encampment does not, by itself, implicate any criminal sanctions that would trigger Eighth Amendment protections”); Catchings v. City of L.A., No. 19-cv-9480, 2020 WL 5875100, at *7 (C.D. Cal. Aug. 7, 2020) (same); Winslow v. City of Oakland, No. 20-cv-01510, 2020 WL 1031759, at *3 (N.D. Cal. Mar. 3, 2020) (same).

90 Le Van Hung v. Schaaf, 2019 WL 1779584, at *4–*5.91 Housing is a Human Right Orange Cty. v. Cty. Of Orange,

No. 19-cv-388, 2019 WL 8012374, at *5 (C.D. Cal. Oct. 28, 2019).

92 Id.93 Mahoney v. City of Sacramento, No. 2:20-cv-00258, 2020

WL 616302, at *3 (E.D. Cal. Feb. 10, 2020); but see id. (extending Martin and holding that the City may not “prosecute or otherwise penalize” plaintiffs for urinating in public “if there is no alternative to doing so”).

94 ‘Extraordinary’ Hearing on L.A.’s Homelessness Crisis Held on Skid Row, KTLA 5 (Feb. 4, 2021), https://ktla.com/news/local-news/extraordinary-hearing-on-l-a-s-homelessness-crisis-held-on-skid-row/; see also Susan Shelley, Los Angeles Shows the State How Not to Address Homelessness, The Orange Cty. Reg. (June 15, 2019), https://www.ocregister.com/2019/06/15/los-angeles-shows-the-state-how-not-to-address-homelessness/ (observing that “[t]he entire City Council and City Attorney Mike Feuer deserve blame” for the “failure to stop the growing plague of homeless encampments that are blocking the sidewalks, spilling trash and spreading rodents and disease,” and noting that “[i]t was a mistake to settle” Jones and Mitchell).

95 See, e.g., Attorneys for Homeless Threaten to Sue to Block San Clemente Plan, NBC 4 L.A. (May 23, 2019), https://www.nbclosangeles.com/news/local/streets-of-shame/homeless-attorneys-threaten-to-sue-to-block-san-clemente-plan/162191/ (describing threats to use Martin decision to block City of San Clemente from setting up a fenced outdoor camping area for persons experiencing homelessness).


Gary Blasi is Professor of Law, Emeritus, at the UCLA School of Law. Before joining UCLA in 1991, he practiced for 13 years at the Legal Aid Foundation of Los Angeles, where he began representing homeless individuals and families in 1983. His research at UCLA has focused, in part, on the causes of homelessness, the social psychology of responses to it, and the effectiveness of interventions.

I. INTRODUCTION

On February 8, 2021, the City of Boise, Idaho settled a case with six formerly homeless residents of Boise who had been cited in 2007 and 2008 for violating an ordinance that banned people from sleeping in any public space in the city. The plaintiffs claimed the ordinance violated the “cruel and unusual punishment” clause of the Eighth Amendment because it was enforced when they had no other place to sleep. Boise paid the six plaintiffs a total of $5,000, promised to spend $1.3 million to expand and improve the city’s shelters for homeless individuals, and agreed to clarify that the challenged ordinance permitted sleeping outdoors when there was no available shelter.1

The settlement attracted national media attention, not because of special interest in the sixty-one unsheltered homeless residents of Boise and surrounding Ada County,2 but rather because the case had resulted in a decision in the United States Court of Appeals for the Ninth Circuit, Martin v. Boise,3 and a highly publicized effort by litigants in the United States Supreme Court to reverse the Ninth Circuit’s holding in that decision that, “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”4 The petition for certiorari was supported by an avalanche of amicus briefs, including those of thirty-three California cities and counties, the states of Idaho, Alaska,

Indiana, Louisiana, Nebraska, South Dakota, and Texas, and the Brentwood Community Council.5 To the surprise of many, the Court declined to hear the case. The Court’s refusal to grant certiorari and $5,000 settlement marked the end of one case, but certainly not the end of the controversy.

In contrast to Boise’s sixty-one unsheltered homeless persons, in the most recent official count there were 48,041 unhoused people in Los Angeles County who lacked shelter of any kind,6 a number that had grown by more than 5,500 in the preceding twelve months. By way of comparison, during the same month New York City counted a total of 3,857 unsheltered homeless persons, less than one- tenth the per capita rate of Los Angeles County.7 In the broader context, across the entire United States, of every 100 Americans who are homeless, unsheltered and on the streets, fifty-three are in California and twenty-four are in Los Angeles County.8 The total numbers obscure deep disparities. A randomly chosen Black person in California is almost six times more likely to be homeless and unsheltered than a white person.9

The homeless crisis in California is of course not new. I began work as a legal aid lawyer for unhoused people in 1983, not long after the term “homeless” came into common use. The most obvious difference between then and now is the proliferation of highly visible encampments, makeshift shelters, and people living in vehicles. So long as homelessness remained out of view of most people, in skid rows, river bottoms, or abandoned spaces in industrial zones, attitudes of most people were generally sympathetic and tolerant. But highly visible encampments are another matter. Some sympathy for the occupants remains, but a tolerance of encampments does not.

Virtually no one, including most people living in encampments, thinks the current situation should be accepted, that a tent or makeshift structure on a sidewalk is a substitute for even the most modest form of housing. The question is not whether encampments should be tolerated and accepted, but what can and should be done to eliminate

A Grounded Approach to Our Homelessness CrisisGary Blasi


them. Before relying on our immediate and instinctive answer, a look to the current facts and to the experience of the past several decades is warranted.

II. THE FACTS OF BEING UNHOUSED

Lawyers can argue the finer points of Eighth Amendment law. Advocates and politicians can debate the need for a “right to shelter,” or an “obligation to accept shelter.” But those points can often belie real world consequences. In the absence of alternatives that are better than the makeshift arrangements unhoused people make for themselves, a consequence of increased police enforcement is the physical displacement of people from one outdoor location to another. In that process, people not only lose the things that protect them from the elements, the medications and documents essential to improving their lot, and the connections of mutual support with others, they also suffer additional trauma and stress that make it even harder for them to get off the street. In the absence of better alternatives, those arrested or displaced are still homeless in a different location.

The decision in Martin discussed only the alternative of a bed in a shelter. But even in areas with high numbers of unsheltered homeless people there are shelters with empty beds, not because unhoused people do not know about them, but rather because of what they do know. As I explain below in this section, there are many reasons why a rational person might decide to move to another outdoor location rather than enter an available shelter unless the only other alternative is a jail cell. Neither the police nor emergency shelter alone will end visible homelessness.

The focus on emergency shelter is understandable and has a long history. When mass homelessness on an unprecedented scale began to emerge in the early 1980s, the immediate response of both government and advocates was to quickly ramp up the availability of emergency shelter. After all, when a natural disaster displaces people, that is what is typically done, through agencies like FEMA and the Red Cross.

But this was not a natural disaster, from which people could go back to their lives and to housing after a period of temporary assistance. These newly homeless people no longer had those lives to go back to or a foreseeable path to being able to pay for housing. Their jobs (and sometimes whole industries) were gone. Sometimes their social supports had disappeared amid the domestic violence that always increases in times of economic stress. The longer they stayed on the streets, the higher became the prevalence of post-traumatic

stress disorder and depression. Many self-medicated with powerful but addictive drugs.

Nevertheless, more emergency shelter beds were made available. In one memorable 1985 episode in Los Angeles, volunteers from the construction trades unions in Los Angeles erected a 19,000 square foot shelter with 138 beds over the course of seven days.10 The problem was that no matter how many emergency beds were added, they were never enough. The policy response was then to add a new category, “transitional housing,” so that people would have a place to go, awaiting “transition” to permanent housing. As might have been expected, “transitional housing” also filled up quickly, for the simple reason that there was no permanent housing that either the unhoused or those trying to help them could afford. The consequence was, and still is, that emergency shelter becomes a de facto form of grossly inferior and inadequate housing that most people can only tolerate for so long.

Many quite rational people are unwilling to live for a long period in a shelter meant to accommodate occupants only at night and often without assurances of their ability to return the next day. From the perspective of the well-housed, any emergency shelter might seem like an obviously preferable alternative to being in a tent or makeshift shelter. And it might well be, in especially cold and wet weather, at least for a time. But most of the time, in most of the more populated areas of California, there are many quite understandable reasons a person might choose to live in a tent in a makeshift encampment rather than in an emergency shelter.

Nearly all emergency shelters provide shelter on a night-by-night basis and require people to leave during the day. Virtually none permit an occupant to bring with them more than a small bag or two. Those two nearly universal rules of shelter life mean that in exchange for one night off the street a person must abandon virtually everything they have managed to put together to survive on the streets. Beyond such practical concerns, human beings are social creatures, with needs beyond survival. Emergency shelters operate on a purely individualized and single-gender basis. Going into a shelter can mean abandoning an intimate partner or best friend. Sometimes that best friend is a dog or other pet. Very few emergency shelters allow pets of any kind.

Both real housing and encampments provide for universal human needs beyond the biological. Among those needs are privacy, autonomy, dignity, and companionship. In nearly all shelters, occupants are open to continuous surveillance by those in charge. They are often told when they can enter, when they may lie down, when they must get up, and


when they must leave. In many shelters operated by private organizations, access to a cot also entails listening to sermons and other proselytizing for religious belief. Those who profess belief may be offered more than one night at a shelter. On the street these are known as the “pray to stay” missions or shelters. In my experience, most of the people who staff emergency shelters are wonderful, altruistic people. But, as in other contexts, when people have de facto authority over other people, some will abuse that authority in ways that further degrade those whose circumstances they control.

If so many unhoused people come to reject emergency shelter, why are emergency shelters operating at capacity? The seeming paradox is explained by the fact that homelessness is not a characteristic of people, but a process. There are very few people in encampments who came immediately after losing their housing. After exhausting their resources and social networks, those who had vehicles tried living in them, as thousands do. Those without vehicles and those who lose them to impoundment generally do, for a time, try sleeping in a shelter bed. There are enough newly homeless persons to keep shelters close to capacity, even as others leave.

If the objective is to have fewer people living in tents, makeshift shelters, or encampments, and do more than simply alter their location, unless we are prepared to incarcerate people, we must provide better alternatives. Importantly, I mean “better” not in the view of law professors, real estate lawyers, judges, or politicians, but better in the views of unhoused people themselves. As discussed in Section V below, perhaps the most effective and ultimately least expensive alternative is not a shelter bed but minimally adequate housing, provided either through increasing incomes enough to pay market rents, or housing with rents subsidized enough to be affordable to the extremely poor.

III. HOMELESSNESS AND ITS CAUSES

To assess alternatives, more factual context is required. The most granular facts about homelessness anywhere in California concern Los Angeles County, primarily those compiled by a joint powers authority, the Los Angeles Homeless Services Authority (LAHSA). In January 2020, LAHSA found that of 46,000 unsheltered homeless persons, there were about 19,000 people living in vehicles and 12,000 living in tents and makeshift shelters.11 Of course, Los Angeles is not representative of the rest of the state, but the same forces that produce homelessness operate across the state.

Chief among these is the imbalance between the numbers of extremely poor people and the cost of rental housing, particularly in the most expensive urban areas. Five of the twelve metro areas in the United States with the highest percentage of “severely rent burdened renters” (those who spend more than half their income on rent) are in California, with Los Angeles alone accounting for 671,800 such households.12 Although “severe” is the most serious level of rent burden reported, for many the level of housing precarity is worse. A study by the Economic Roundtable found that there were 600,000 Los Angeles County residents in households spending 90% or more of their income on rent.13 All those residents are on the precipice of homelessness. Any minor setback can have ultimately catastrophic results.

The unhoused population includes a disproportionate share of people with addiction, mental health, or other disabling conditions that make them less able to compete for scarce housing. Contrary to common stereotypes, however, more than two-thirds of unhoused people are not suffering from a serious mental disorder.14 For nearly all those who are, their homelessness is the result of the combination of poverty and mental disability, rather than mental disability alone.

A. Income

In 2020, two-thirds of unsheltered adults surveyed in Los Angeles were experiencing their first episode of homelessness. Of those, 59% attributed the cause of their homelessness to economic hardship, 39% attributed the cause to a “weakened social network,” and 29% attributed the cause to a “disabling health condition.”15 All three reasons trace back to inadequate income, since people who lose income almost always turn first to familial and social networks, and health problems are a significant cause of loss of income. The proximate cause of most homelessness is lack of money.

It is often thought that California has a social safety net that should keep people who lose their income from becoming homeless. That was, in fact, once the case. The California Supreme Court held in 1971 that an 1855 law, now as codified in Welfare and Institutions Code section 17000, “imposes a mandatory duty upon the counties to ‘relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident’” who had no other means to survive.16 In 1986, the court of appeal held that a statute imposed on county boards of supervisors the duty to “adopt standards of aid and care” based on the actual cost of obtaining the means of a bare subsistence, including “allocations for housing, food, utilities, clothing, transportation and medical care.”17 California counties


implement these laws through programs known as “general assistance” or “general relief.”

In 1982, the General Relief (GR) program in Los Angeles County provided a grant in the form of a loan in the amount of $221 per month18 to cover all survival needs of destitute Angelenos. That was at the time enough to rent a room in a slum “hotel” on Skid Row for a month. In litigation settled on June 11, 1991, the Board of Supervisors entered a consent decree raising the amount of the grant and agreeing to adjust the amount for inflation going forward, in exchange for a waiver of about $100,000,000 in back benefits owed. Less than three weeks later, the County of Los Angeles successfully lobbied the California Legislature to declare “null and void” the consent decree the Board of Supervisors had just signed.19 The legislation went much further than that. Not only did the legislation void the settlements to which the County agreed, it set a dollar limit on the amount any California county would ever be required to contribute to the survival needs of the poor. The limit was set at “62 percent of a guideline that is equal to the 1991 federal official poverty line,”20 which was exactly the $221 per month Los Angeles County had provided in 1982. As of July 2020, 153,874 Californians were attempting to survive on general assistance, 70% of whom were in Los Angeles County.21 Not surprisingly, most are homeless, including many living in encampments.

B. Housing

If one could still rent a room for $50 per week or share a tiny apartment for $400 per month, then the GR grant would be enough to prevent homelessness for many individuals. But the current “fair market rent” as determined by HUD for a single room apartment in the Los Angeles area is currently $1,369.22 Rents are even higher in other counties, including efficiency apartment rents of $2,228 in San Jose, where general assistance monthly grants can reach $343,23 and $2,350 in San Francisco,24 where benefits can amount to as much as $588 per month.25 Before the COVID-19 pandemic, researchers using data from the real estate website Zillow.com, found that there are inflection points in the relationship between rental affordability and homelessness, such that “[o]nce housing costs enter the 30-34% of median income region, the expected homeless rate in a community increases sharply.”26 Much of California entered that “region” of high risk long ago.

All the facts above preceded the COVID-19 pandemic and resulting collapse of important sectors of the economy. There was no reason to expect that the mismatch between incomes and rents would improve before the COVID-19

pandemic, which has left more than 750,000 Californians facing eviction or foreclosure.27 A series of actions at all levels of government have at least temporarily postponed the tsunami of evictions and homelessness that loomed before those actions were taken.28 It remains to be seen how effective those measures and others that may come will be in reducing the aggravation of what was already a critical problem. What is clear is that, absent substantial changes either in incomes or rents, mass homelessness in California will be with us for years to come. California cannot afford responses that are unproductive, or worse.

IV. POLICY RESPONSES TO MARTIN V. BOISE

Those seeking certiorari in the Supreme Court in Martin adopted a calamitous interpretation of the decision below.

Under the Ninth Circuit’s decision, state and local governments may not enforce public-camping laws against any individual unless and until they provide adequate shelter space to house all individuals. . . . Its all-or-nothing rule undercuts local governments’ ability to safeguard public health and safety and ensures that homeless encampments will proliferate throughout our cities and towns.29

This was, perhaps, an effective rhetorical device aimed at the Supreme Court, but it was not an accurate reading of the opinion, which had held that,

Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance banning the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the ‘‘universal and unavoidable consequences of being human’’ in the way the ordinance prescribes.30

In short, the Ninth Circuit left open a number of policy options for local governments to consider.


A. Emergency Shelters

The language in Martin does not offer precise guidance for the crafting of ordinances aimed at forcing people from encampments, but it does implicitly suggest one obvious, if cynical, potential strategy to evade its intent. A temporary shelter that offers some protection from the elements but is so hostile to other fundamental human needs and preferences discussed in the introduction, including those of privacy, security, autonomy, and dignity, will be rejected by many unhoused people. That refusal might then be used to justify the arrests and loss of possessions of those people who cannot relocate on short notice to another location. No doubt there are already politicians and lawyers considering this strategy. But the fact is that such efforts will not significantly reduce the number of people living outdoors or in vehicles. Some people will ignore all the negative aspects of any shelter and stay there because they cannot otherwise survive, especially in bad weather. There is evidence that many others will not.

Los Angeles opens “winter shelters” and “cold/wet weather” shelters each year. Users of these shelters can bring with them two bags on the bus that takes them from a pickup spot to the shelter, which can be miles away. They can stay for one night, before being bused back the next morning to the same pickup spot. The shelters are generally located far from the familiar communities where people were last housed. They consist of cots or mats on the floor in large rooms. Of those staying in these shelters, only 1.6% leave the shelters for permanent housing.31 For the rest, when the shelters close for the season, they go back to the streets having made little progress toward something better. In 2018-2019, these shelters had an occupancy rate of 59%.32 Better shelters have lower vacancy rates. In times of bad weather, they have waiting lists. But people will choose a typical emergency shelter rather than moving to another outdoor location only if the shelter is better for them. There is always another place to go.

B. Housing

Shelters are not necessarily cheaper than housing. Capital costs, not including land, for the shelter projects in Los Angeles’ largest effort, the “A Bridge Home” initiative, have averaged about $50,000 per bed.33 The capital costs in the most recent efforts in San Francisco have been about $41,715 per bed.34 Those might seem like reasonable figures. But the primary cost difference between shelter and housing is the cost of operations, which has averaged between about $38/day for basic shelter operations in San Francisco35 to $60/

day per bed for shelters with more services of various kinds in Los Angeles.36

Leaving aside the initial costs of construction or conversion, in Los Angeles, the $1,800 per month that might be spent providing only a bed could instead provide the equivalent of a Section 8 Housing Choice voucher for an efficiency apartment with kitchen and bath, leaving an additional $400 to meet other basic needs. Shelters effectively provide a 100% subsidy for de facto substandard housing and typically include meals. People with vouchers through the federal Section 8 program typically contribute 30% of whatever income they have toward the rent. They can prepare their own food, obtained with federal food assistance (in California, CalFresh), which is much more easily obtained than General Relief. With a more stable living situation, people have a better chance of becoming more self-sufficient.

A great many people in encampments who will refuse most temporary shelters will eagerly accept actual housing of the most minimal sort. The most vivid evidence for me came from witnessing a kind of natural experiment conducted by the County of Los Angeles as part of its “Project 50” experiment begun in 2007. The County sought to identify the fifty most vulnerable unsheltered homeless individuals on Skid Row (those most likely to die without intervention), and then offered them a room in a converted single-room occupancy (SRO) apartment hotel with supportive services. To identify the most medically vulnerable, county volunteers walked the streets of Skid Row in the middle of the night and conducted a structured interview of those sleeping on the sidewalks.

I accompanied one of the interview teams. An LAPD squad car was always out of sight around the corner in case some issue arose (none did). I observed but did not participate. The protocol consisted of the volunteers explaining the purpose of the interview (to help the County plan a new housing program) and to obtain consent to be asked questions that were often deeply personal. I recall one such episode more than others. The volunteer approached and awoke a man sleeping on a pile of cardboard under some blankets. The volunteer explained her purpose to talk to him about his eligibility for a new housing program the County was starting. He interrupted her immediately, saying words to the effect that he had tried every shelter and mission in Skid Row and that his place on the cardboard was better for him. But then the County worker explained that she was not talking about a cot in a large room with other men, but a room with a door that locked, to which he would be given the key. The gentleman’s attitude changed immediately. The


interview proceeded. She got his name and took a photo so that County workers could find him when the program began.

He was not exceptional. When Project 50 outreach workers later contacted those on the streets who had been identified as most at risk and offered them a small but private room, the acceptance rate was reportedly 100%. Over the next four years, Project 50 housed 133 people, with an average retention rate of 80% over the four years. Perhaps more surprisingly, the net costs to the County of Los Angeles of Project 50 were less than zero. The program saved the County $3.284 million over those four years in medical, mental health, welfare, court, and jail expenses.37 Studying a larger and more representative sample, researchers at the Economic Roundtable compared costs of 297 matched individuals in extensive County databases and found that those in supportive housing generated $605 in average public costs, compared to $2,897 for those who were homeless.38

V. MOVING FROM SHELTER TO HOUSING

If housing is the ultimately the only effective long-term answer to persistent and visible homelessness, then the costs per unit of suitable living space in California must come down.

One way to accomplish that is to produce smaller units, especially for single people without children. The current housing codes require one habitable room of at least 120 square feet, about one-fourth the size of the average efficiency apartment now being produced in California. More than a century ago, the private market in California produced thousands of even smaller units in what came to be called Single Room Occupancy (SRO) buildings. There is now some renewed interest in a niche market for “micro apartments” not much larger than 120 square feet. Apart from size, there is the matter of the ancient technology still utilized in most apartment construction, which is still using on-site construction by carpenters using dimensional lumber and nails. The factory production methods pioneered by Henry Ford have penetrated only the margins of housing production, those that use the mobile home form factor.

Even an optimist must assume that modernizing housing codes and production methods in California will take time. Meanwhile, we have a few workable options.

A. Repurposed Hospitality Properties

In California, there are approximately 287,000 rooms intended for human habitation sitting vacant and unused,39

more than 2.5 times the number of unsheltered homeless Californians. Those rooms are in hotels and motels around the state. Of course, the 60% vacancy rate in hospitality properties will drop as the COVID-19 pandemic and devastation of tourism nears an end. But business conditions have made it much cheaper for either speculative investors or government and nonprofit organizations to acquire those properties. That opportunity is one the state has not ignored. Through Project Homekey, $600 million was allocated in a matter of months for specific acquisitions.40 By the end of 2020, the state had facilitated acquisitions of 6,029 units in ninety-four properties, at a per-unit cost of $123,987.41 The 2021-2022 state budget has allocated $750 million for additional acquisitions.42

Hotel and motel rooms can be used immediately and do not typically require extensive renovation to function as small apartments.43 For example, a modular kitchen costs less than $1,000.44 Importantly, for the focus of this article, unhoused people require no encouragement to use them. In a survey of homeless people in Portland, Oregon, a hotel or motel room was the overwhelming preference for temporary housing, the first choice of 53% of respondents, compared to 3% who preferred a shelter.45 As with any temporary alternative to standard housing, the temporary becomes permanent if there is no path toward permanent housing. But as an interim step while California (hopefully) deals with the dual crises of extreme poverty and a decades-long failure to construct very low-cost housing, hotels or motels are a resource we cannot afford to ignore.

B. Repurposed Office Space

While the tourism industry may return to its pre-COVID-19 state, many observers believe that this is not the case for office building space, as the country has conducted a forced experiment looking at the costs and benefits of working from home.46 The final results of that experiment are not in yet, and certainly the complications of even temporary conversion may be greater than with hotels and motels, but there is no reason to ignore the opportunity. There are successful examples already, including the creation of a family shelter with private rooms in one of Amazon’s office buildings in Seattle.47 Certainly, it would be a tragedy if tens of thousands of people continued to live in street encampments while office buildings remained vacant and completely unused.


C. “Villages” of Small Structures

Another option to consider is a small village of small structures, as small as sixty-four square feet in size, with a structural floor that requires no foundation or significant site preparation. In conjunction with common bathrooms and other facilities in an “amenities block” of the kind common in campgrounds, these villages can provide not only protection from the elements but also a degree of privacy and autonomy, particularly if they are operated and managed in conjunction with those who occupy them.48An example of such small structures currently in use at several West Coast locations are those manufactured by Pallet Shelter, a self-described “social purpose company” based in Seattle.49 Costs for the smallest version of the structure, with two bed platforms, a lockable door, and a window, start at $4,900.50 That does not mean, however, that local government may not find a way to make use of such structures ridiculously expensive.51

D. Mitigation, Harm Reduction, and Sanctioned Encampments

The descriptions of encampments of unhoused people provided to the Supreme Court by the Martin petitioners and amici were meant to, and did, provoke disgust. The amicus brief of Los Angeles downtown property owners painted the following hellscape of Skid Row:

a hotbed for flea-infested rats and other vermin, which are largely responsible for the recent outbreaks of medieval disease . . . garbage, human waste, and other detritus . . . unlivable for residents, and often deadly for those on the street.52

That description has been more or less accurate at various times. What is missing from the description is that trash receptacles are not routinely emptied and portable toilets are not routinely serviced so that encampment residents have a place to put “garbage, human waste, and other detritus.” In several places, often in response to the COVID-19 pandemic, local governments have increased the availability of sanitation and other mitigation measures and supported efforts by those in encampments to improve conditions.53

Since the COVID-19 pandemic began and the Centers for Disease Control and Prevention instructed local governments that “if individual housing options are not available, allow people who are living unsheltered or in encampments to remain where they are,”54 some cities have stepped up efforts to either formally sanction or increase services to encampments.55 The desired end of the COVID-19 pandemic will not change the other impacts of encampments, either

for those living in them or others in the community. One can only hope that these common-sense (and long overdue) mitigation measures will expand and not end before there are real alternatives to encampments.

E. Reduce Extreme Poverty

By far the best solution to any person’s homelessness is a rent payment a landlord is willing to accept. But it is unlikely that even the most advanced and sophisticated methods of expanding the supply of affordable housing will produce housing within reach of a General Relief recipient with a monthly income of $221. If unsheltered homelessness is a problem for everyone, then it is in our common interest to work toward the day when every Californian can afford to pay rent.

Endnotes

1 Hayley Harding, Boise Will Settle Controversial Homeless Camping Lawsuit, Change City Code, L.A. Times (Feb. 8, 2021), https://www.latimes.com/world-nation/story/2021-02-08/boise-will-settle-controversial-homeless-camping-lawsuit-change-city-code.

2 HUD Exchange, 2019 AHAR: Part 1 – PIT Estimates of Homelessness in the U.S., database titled 2007 - 2019 Point-in-Time Estimates by CoC.xls, https://www.hudexchange.info/resource/5948/2019-ahar-part-1-pit-estimates-of-homelessness-in-the-us/.

3 920 F.3d 584 (9th Cir. 2019).4 Id. at 617.5 Briefs for City of Boise, Idaho v. Martin, https://www.

scotusblog.com/case-files/cases/city-of-boise-idaho-v-martin/.

6 L.A. Homeless Servs. Auth., 2020 Greater Los Angeles Count – Los Angeles County, https://www.lahsa.org/documents?id=4698-2020-homeless-count-la-county-data-summary.

7 N.Y. Dep’t of Social Servs., January 2020 Survey Estimates 23 Percent Decrease in Unsheltered Homelessness on the Subways (Aug. 16, 2020), https://www1.nyc.gov/site/dhs/about/press-releases/decrease-in-unsheltered-homelessness-on-the-subways-2020-08-16.page.

8 Numbers computed by HUD Exchange, note 2. Los Angeles County includes four reporting jurisdictions: Los Angeles, Pasadena, Long Beach, and Glendale.

9 2019 homeless demographic data from HUD Exchange, note 2. California demographic information from United States Census Bureau, QuickFacts California (July


1, 2019), https://www.census.gov/quickfacts/fact/table/CA/PST045219.

10 Bill Boyarsky, Bradley Praises Labor Unions for Building Skid Row Shelter, L.A. Times (Jan. 22, 1985), https://www.latimes.com/archives/la-xpm-1985-01-22-me-10987-story.html; Kevin Roderick, New Skid Row Shelter Full; Hundreds Still on Streets, L.A. Times (Jan. 26, 1985), https://www.latimes.com/archives/la-xpm-1985-01-26-me-13735-story.html.

11 L.A. Homeless Servs. Auth., 2020 Greater Los Angeles Homeless Count – Vehicles, Tents, and Makeshift Shelters Counted by Geographic Area, https://www.lahsa.org/documents?id=4584-2020-greater-los-angeles-homeless-count-vehicles-tents-and-makeshift-shelters-counted-by-geographic-area. Data is for the Los Angeles Continuum of Care, which consists of Los Angeles County, but excludes Long Beach, Glendale, and Pasadena.

12 Harvard Joint Center for Housing Studies, The State of the Nation’s Housing, 2020, https://www.jchs.harvard.edu/state-nations-housing-2020, Appendix Table W-13, Harvard_JCHS_SON_2020_Appendix_Table_120720.xls.

13 Econ. Roundtable, Escape Routes: Meta-Analysis of Homelessness in Los

Angeles County (2018), 3, https://economicrt.org/wp- content/uploads/2018/04/Escape-Routes-LA-Homeless-Meta-Analysis.pdf.

14 L.A. Homeless Servs. Auth., Greater Los Angeles Homeless Count 2020 (2020), 19, https://www.lahsa.org/documents?id=4558-2020-greater-los-angeles-homeless-count-presentation.

15 Id. at 23. 16 Mooney v. Pickett, 4 Cal. 3d 669, 676 (1971),17 Boehm v. Superior Court, 178 Cal. App. 3d 494, 503

(1986).18 The Times Editorial Bd., Editorial: Could You Live in

L.A. on $221 a Month?, L.A. Times (May 12, 2015), https://www.latimes.com/opinion/editorials/la-ed-adv-general-relief-20150513-story.html.

19 As explained by Justice Earl Johnson in a later appellate case:

The ink was barely dry on the judgment incorporating the settlement agreement between the county and appellant welfare recipients when the county began lobbying the state Legislature to get it out of the promises it made in that agreement. Lobbyists for the same board of supervisors which had authorized and participated in the

negotiations that produced the agreement sat down with legislators and their staffs and devised legislation which declared that agreement was “null and void.”

Mendly v. Bd. of Supervisors, 23 Cal. App. 4th 1193, 1239 (1994).

20 Cal. Welf. & Inst. Code § 17000.5(a) (1991).21 Cal. Dep’t of Social Servs., General Relief and Interim

Assistance to Applicants for SSI/SSP Monthly Caseload and Expenditure Statistical Report, https://www.cdss.ca.gov/inforesources/research-and-data/disability-adult-programs-data-tables/gr-237, database GR237FY20-21.xls (Nov. 23, 2020).

22 Dep’t of Housing and Urban Dev. (HUD-USER), FY 2021 Fair Market Rent Documentation System, The FY 2021 Los Angeles-Long Beach-Glendale, CA HUD Metro FMR Area FMRs for All Bedroom Sizes, https://www.huduser.gov/portal/datasets/fmr/fmrs/FY2021_code/2021summary.odn.

23 Cty. of Santa Clara Social Servs. Agency, Financial Assistance for Adults Without Dependent Children (General Assistance), Frequently Asked Questions: How Much Cash Will I Get Each Month from GA?, https://www.sccgov.org/sites/ssa/financial-assistance/Pages/general-assistance-program.aspx.

24 HUD-USER, note 2.25 S.F. Human Servs. Agency, County Adult Assistance

Programs (CAAP), https://www.sfhsa.org/services/jobs-money/county-adult-assistance-programs-caap.

26 Chris Glynn, et al., Inflection Points in Community-Level Homeless Rates 4 (2020), https://wp-tid.zillowstatic.com/3/Homelessness_InflectionPoints-27eb88.pdf.

27 U.S. Census Bureau, Household Pulse Survey Likelihood of Eviction or Foreclosure (Feb. 1, 2021), https://www.census.gov/data-tools/demo/hhp/#/?measures=EVR.

28 See, e.g., Gary Blasi, UD Day: Impending Evictions and Homelessness in Los Angeles (2020), https://escholarship.org/uc/item/2gz6c8cv; Emily Benfer, et al, The COVID-19 Eviction Crisis: An Estimated 30-40 Million People in America Are at Risk (2020), https://www.aspeninstitute.org/blog- posts/the-covid-19-eviction-crisis-an-estimated-30-40-million-people-in-america-are-at-risk/#comments.

29 Petition for Writ of Certiorari at 27, City of Boise v. Martin, 2019 WL 4034750 (2019).

30 Martin v. City of Boise, 920 F.3d 584, 617 n.8.31 Id.


32 L.A. Homeless Servs. Auth., 2019-2020 Winter Shelter Dashboard, https://www.lahsa.org/data?id=39-2019-2020-winter-shelter-program-dashboard.

33 Public data on the costs of three shelters include the Shrader shelter in Hollywood ($3.3 million, or $45,833, for each of 72 beds), https://www.latimes.com/local/lanow/la-me-ln-homeless-shelter-hollywood-20190416-story.html; El Pueblo shelter near downtown Los Angeles (2.4 million, or $53,333 each, for 45 beds), https://www.latimes.com/local/lanow/la-me-ln-bridge-home-homeless-20180905-story.html; and a fabric “sprung structure” shelter on the West Los Angeles Veterans’ Administration campus ($5 million, or $50,000 each, for 100 beds), https://11thdistrict.com/news/bridge-housing-to-open-at-west-la-va-campus/.

34 Bay Area Council Econ. Inst., Bay Area Homelessness a Regional View of a Regional Crisis 18 (2019), http://www.bayareaeconomy.org/files/pdf/Homelessness_Report_2019_web.pdf.

35 Id.36 L.A. Homeless Servs. Auth., Homeless Services

System Analysis 38 (2020), https://www.lahsa.org/documents?id=4311-homeless-services-system-analysis-envisioning-an-optimal-system-in-los-angeles. This is consistent with a Los Angeles Times analysis of thirty-five shelter budgets which found the actual cost of running shelters averages about $62 per bed per day, including the costs of services offered to residents beyond access to a bed. Doug Smith, Q&A: Demystifying L.A.’s System of Homeless Shelters, L.A. Times (Sep. 29, 2017), https://www.latimes.com/local/lanow/la-me-shelter-q-a-20170929-htmlstory.html.

37 U. of Pa., Actionable Intelligence for Social Policy, Project 50: Ending Chronic Homelessness with Permanent Supportive Housing and Integrated Data Systems (2015), https://www.aisp.upenn.edu/wp-content/uploads/2020/01/IDS_ExamplesOfIDSBenefit_LaCounty_Project50.pdf.

38 Daniel Flaming, et al, Where We Sleep: Costs when Homeless and Housing in Los Angeles 28 (2009), https://economicrt.org/wp-content/uploads/2009/11/Where_We_Sleep_2009.pdf.

39 STR Inc., California Lodging Report-Weekly (Feb. 11, 2021), https://industry.visitcalifornia.com/research/report/weekly-california-lodging-report.

40 Cal. Dep’t of Housing and Cmty. Dev., Homekey, https://www.hcd.ca.gov/grants-funding/active-funding/homekey.shtml#background.

41 Office of Governor Newsom, Governor Newsom Announces Major Homekey Milestone: All 94 Sites Closing Escrow Ahead of Deadline (Dec. 29, 2020), https://www.gov.ca.gov/2020/12/29/governor-newsom-announces-major-homekey-milestone-all-94-sites-closing-escrow-ahead-of-deadline/.

42 Cal. League of Cities, 2021 Legislative and Budget - Efforts to Addressing Housing Production and Homelessness (Feb. 3, 2021), https://www.cacities.org/Resources-Documents/Education-and-Events-Section/City-Managers/2021-Session-Materials/2021-Legislative-and-Budget-Efforts-to-Addressing#:~:text=The%202021%2F2022%20State%20Budget,interim%20or%20long%2Dterm%20housing.

43 Ananya Roy, et al., Hotel California: Housing the Crisis 43-52 (2020), https://escholarship.org/uc/item/0k8932p6.

44 See, e.g., Avanti Model CK3016 Complete Compact Kitchen with Refrigerator, https://www.avantiproducts.com/products/id/598.

45 Kaia Sand, Survey: Moving Into Motels, Hotels is Top Choice of Unhoused People, Street Roots (May 22, 2020), https://www.streetroots.org/news/2020/05/22/survey-moving-motels-hotels-top-choice-unhoused-people.

46 Nicholas Bloom, The Bright Future of Working from Home (2020), https://siepr.stanford.edu/research/publications/bright-future-working-home.

47 Bruce Haring, Amazon Turns a Seattle Office Building Into A Permanent Homeless Shelter, Deadline (May 22, 2020), https://deadline.com/2020/05/amazon-turns-office-building-homeless-shelter-seattle-1202942304/. See also, Christa Wood, That Vacant Building Has a Better Use, (May 31, 2018), https://perkinswill.com/news/that-vacant-building-has-a-better-use/; Michael Wiencek, Abandoned Office Buildings Can Become New Housing, Greater Greater Wash. (Jan. 5, 2017), https://ggwash.org/view/61871/abandoned-office-buildings-can-become-new-housing.

48 Hilary Malson and Gary Blasi, For the Crisis Yet to Come: Temporary Settlements in the Era of Evictions 40-45 (2020), https://escholarship.org/uc/item/3tk6p1rk.

49 Shelter Pallet, Our Shelters, https://www.palletshelter.com/our-products. According to the company, the “social purpose” of the company is also served because


many of the workers who produce the small structures were once homeless themselves.

50 Id. A model with more features can be purchased at retail from Amazon for $6,995, https://www.amazon.com/Generic-Pallet-Shelter-64/dp/B081QR7DVK.

51 Doug Smith, $130,000 for an 8-foot-by-8-foot Shed? That’s What L.A. is Paying in a Bid to House the Homeless, L.A. Times (Dec. 12, 2020), https://www.latimes.com/california/story/2020-12-12/los-angeles-tiny-homes-homeless. The City of Los Angeles budgeted $546,000 in “design, project management and inspection costs,” far exceeding what the City paid for the structures themselves. Id.

52 Brief of Amici Curiae Int’l Downtown Ass’n, et. al, City of Boise v. Martin, 2019 WL 487964, at **8-9.

53 Malson and Blasi, supra note 48, at 31-40.54 Centers for Disease Control and Prevention, Interim

Guidance on Unsheltered Homelessness and Coronavirus Disease 2019 (COVID-19) for Homeless Service Providers and Local Officials (updated Aug. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/unsheltered-homelessness.html. The CDC further explained: “Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread.” Id.

55 Malson and Blasi, supra note 48, at 31-34.

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Dianne Jackson McLeanOaklandAdvisor

Jose A. MendozaLos AngelesAdvisor

Jeremy L. OlsanSanta RosaAdvisor

John S. RichardsDanvilleAdvisor

Victor RochaMonterey ParkAdvisor

Gillian van MuydenGlendaleAdvisor

CALIFORNIA LAWYERS ASSOCIATION

Emilio VaraniniPresident

Betty WilliamsChair

Ona Alston DosunmuCEO & Executive Director

Tricia HoranAssociate Executive Director, Education and Operations

Erin RavenscraftReal Property Section Coordinator

Mycah HetzlerAdministrative Assistant

California Lawyers AssociationReal Property Law Section 400 Capitol Mall, Suite 650 Sacramento, CA 95814

http://calawyers.org/realproperty