Local governments historically have generally exercised their broad land use and zoning powers to exclude rather than encourage housing affordable to lower income households. Local prejudices and parochialism cultivated land use policies and practices that exacerbated long time patterns of racial and economic segregation. They also underlie efforts to eliminate low income communities of color under the guise of eliminating blight. In recent years, however, California has adopted several laws that place important limitations and obligations on local decision makers when it comes to approving affordable housing or displacing lower income tenants.

• Local land use authority begins with the adoption of a general plan, which must include a housing element that is updated every five years. Most significantly, a housing element must identify specific sites that are available appropriate for affordable housing and address governmental constraints to development. The sites must be sufficient to accommodate the community, state, and regional government determined “fair share” of the regional need for affordable housing. If the locality fails to adopt a housing element or adopts one that is inadequate, a court can order the locality to halt development until an adequate element is adopted or order approval of specific affordable housing developments. In most cases, the identification of sites must include sites zoned for multifamily development by right. Given economic realities in most communities, i.e. that people of color are disproportionately lower income, these laws, coupled with strategies to ensure housing choice and policies that encourage racial integration, can be particularly beneficial to communities and households of color. Interested in more information? Take a look at PILP’s California Housing Element Manual.

• Even in communities with good housing elements, misinformation and prejudice e.g. based on race, ethnicity or disability, often unconscious or masked, can generate fierce opposition to affordable housing. State law counters this Not-In-My-Backyard phenomenon by prohibiting disapproval of affordable housing unless the locality finds that one of a few specific and narrow conditions exist. Generally, a local agency may not turn down an affordable housing development unless the project would have a specific, adverse and unavoidable impact on health and safety, based on objective, written standards and which cannot be mitigated or the community has met all of its “fair share” housing need. This relatively high standard, if interpreted and enforced property, enables affordable housing advocates to counter or mitigate virulent opposition based on racial animus, bias against low-income people, and bias against people with disabilities. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• This statute forbids discrimination against affordable housing developments, developers or potential residents by local agencies when carrying out their planning and zoning powers. Agencies are prohibited not only from exercising bias based on race, sex, age or religion, but from discriminating against developments because the development is subsidized, will be occupied by lower income persons, or is a multifamily building. Local governments may not impose different requirements on affordable developments than imposed on market-rate projects. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• Like the federal Fair Housing Act (FHA), FEHA prohibits discrimination by local government and individuals based on race, color, religion, sex, familial status, marital status, national origin, ancestry or mental or physical disability (and FEHA also protects sexual orientation and source of income). FEHA expressly prohibits discrimination through public or private land use practices and decisions, and expressly provides that there is a prima facie violation of FEHA if land use actions have a disparate impact on the protected groups. (§ 12955.8) This provides advocates with a powerful tool for addressing exclusionary actions where there is little from of or no evidence of intentional discrimination, which now is more often the case in the case of housing discrimination based on race.

• FEHA, like federal law also requires local governments considering housing projects for the disabled to make reasonable accommodations in rules, policies and practices if necessary to afford disabled persons equal opportunity for housing. (§ 12927). Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• Local governments must grant projects with a prescribed minimum percentage of affordable units up to a 35% increase in density and/or up to 3 incentives/concessions from local land use regulations and development standards. A concession can include a reduction in parking or design standards or modification of zoning requirements. Interested in more information? Take a look at PILP’s Laws Affecting the Location & Approval of Affordable Housing.

• CEQA Exemption: Pub Res Code §§ 21159.20-25 provide exceptions to from CEQA review for affordable developments meeting particular criteria.

• Conditional Use Permits: Gov. Code § 65589.4 prohibits conditional use permits on multifamily housing developments that meet the CEQA affordable housing, farmworker or infill exemptions, and on affordable multifamily housing with 100 or fewer units, a density of at least 12 units/acre, located on an infill site in an urbanized area.

• Exclusionary Zoning: C.H.I.P. v. City of Orland (E.D. Cal.). Faced with virulent NIMBY opposition, the City denied a non-profit developer approvals for the development of a 40 unit farmworker housing development by rezoning the lot for low density development. The developer and farmworker families brought suit alleging, among many claims, that the City’s actions were inconsistent with the housing element, had a disparate impact on Latino families and violated the anti-NIMBY statute. The case settled with the City providing an alternative site in the same neighborhood and damages.

• Combating Displacement: Hom v. I.H.M.C. (Superior Ct., Alameda County). After agreeing to keep 50 units in Oakland’s Chinatown affordable to very low income tenants for at least ten years in exchange for receipt of Oakland Redevelopment Agency funds for a commercial residential project, the owner summarily began vacating units without negotiating with the Agency over maintaining affordability. The tenants, who were predominantly Asian and older persons with disabilities (and ultimately the City) sued raising fair housing claims based on race and disability as well as contractual violations. The case settled with the owner agreeing to convey the 50 units to a nonprofit developer at a substantially discounted price.

By Mike Rawson, Co-director, The Public Interest Law Project. The Public Interest Law Project “provides statewide support, including litigation, policy advocacy, consultation and training for local legal services and other public interest law programs in the areas of public benefits, housing, health, civil rights, redevelopment and community reinvestment. The Project was established in 1996 to continue class action and other major advocacy without LSC funding.”