Last year I wrote several posts about Santa Monica’s efforts to write a new Housing Element that would comply with new state laws that put teeth in longstanding requirements that local governments plan for sufficient growth in housing. Overall, I was doubtful that the City was drafting and would submit a document that would be compliant. Based on those views, I might have been pleased when earlier this month the state’s Department of Housing and Community Development (HCD) rejected the Housing Element that Santa Monica submitted in October.

But I am not.

Let’s put things in context. Santa Monica was not alone. HCD is rejecting most housing elements that cities have submitted. As reported Thursday, HCD even rejected the housing element of the City of Los Angeles, one that had been much admired by the pro-housing community. The problem is that the housing elements can only go so far before they run up against reality.

While HCD must hold cities to a high standard in how they plan to allow more housing development, the process can reach a point of diminishing returns. The housing element process demands an idealization of what should be possible in a just world, but we don’t live in that world. The risk now is that continued efforts to create a perfect document will forestall reform of laws so that real housing, not paper plans for housing, can be constructed. Housing elements are only means to an end; the end is more housing.

I worry that we have reached that point.

When HCD’s rejection letter arrived, the City’s Planning Department immediately suspended a process that was underway to revise Santa Monica’s zoning to satisfy the goals of the housing element that the City had submitted. The process would necessarily lead to better, more inclusive zoning, even if ultimately new zoning, under a more perfect housing element, might be better. Now the process is stopped. Under state law, this creates a paradoxical result.

Because HCD determined that the housing element is not compliant, Santa Monica must now complete zoning changes to accommodate its regional housing needs allocation (RHNA) on an accelerated schedule — by October 15 of this year instead of in two years. However, since Planning has stopped the rezoning process while the department tries to figure out how to revise the housing element to comply, it is hard to imagine how the department can go jump throught all the hoops to get a new revision of the housing element approved by City Council, and then draft and get approval for a zoning update, all by October. (Not to mention that we have a City Council that recently violated the very first program, Program 1A, of the housing element it submitted to HCD by reinstating development review for projects on more than one acre.)

It’s going to be a mess; as everyone in the housing world knows, messes lead to delays, and delays mean housing doesn’t get built.

In fact, particularly in the context of HCD’s rejection of L.A.’s housing element, I wonder if it is possible to create a real-world housing element that would satisfy HCD’s requirements. Consider two requirements: (i) that housing elements show how cities will “affirmatively further fair housing,” and (ii) that RHNA numbers, including Santa Monica’s, emphasize the need for affordable housing. (In Santa Monica 6,168 of the 8,895 RHNA units are supposed to be affordable.) It is not possible, however, (i) to remedy, using only land use laws, more than a century of laws and policies that have excluded non-white people from the housing market, suppressed their wages, and otherwise limited their accumulation of wealth, nor (ii) does housing element law provide funding to build the affordable units a housing element would require. For these reasons, housing elements are always going to be aspirational. The power of housing elements comes if the state uses them to force local governments to make zoning changes. If, however, HCD keeps rejecting housing elements, the zoning changes get pushed back.

A better tactic would have been for HCD to accept the housing elements from cities, regardless how aspirational they were, but then come back and review the zoning to make sure that new zoning would allow for achievement of the RHNA numbers if financing were available. If the zoning was inadequate, then a better remedy would be for state law to allow HCD to override zoning and allow by-right development of housing. As it is, if cities continue to be non-compliant in their housing elements, the law’s counter-intuitive remedy is that they can’t receive funding for affordable housing. Does that make sense? Anti-housers are not going to complain if their cities can’t get money to build affordable housing. Better to give the money to affordable housing providers and let them build wherever they can find land. (Cities can also lose other funding, but would anti-housers care?)

The current law ultimately has provisions that give housing developers rights to build anywhere within non-compliant cites (subject to certain conditions), but those aspects of the law are untested and would probably require litigation to enforce, something developers try to avoid. One option that could work now would be for HCD (or the legislature if necessary) to extend deadlines for the rewriting of rejected housing elements while requiring cities to continue updating their zoning to allow more housing.

The amendments that strengthened the housing element law are new this year and it is not surprising that there has been a steep learning curve. Cities say that they want local control and that the state can trust them not to block housing. An extension of the deadlines for a year would give them time to prove that, and we could get better zoning sooner.

Thanks for reading.