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With More Enforcement Power Than Ever, State Relies on Housing Activists To Enforce Duplex Law

Written by Manuela Tobias at CalMatters and Sarah WrightPublished Apr. 22, 2022 • 10:04am
Illustration by Miguel Gutierrez Jr., CalMatters; iStock

The passage of 2021’s Senate Bill 9 was supposed to herald the end of the single-family zoning that many point to as a culprit of California’s housing crisis. But four months into the new era, little has changed, and the scant enforcement of the law has come about largely because of pro-housing activists. 

The new law, which allows duplexes and split lots on land previously marked as single-family only, has been met with stiff resistance by cities across the state that have passed ordinances effectively — but not directly — blocking the law in their area.  

The state of California — with an annual budget north of $280 billion — is largely reliant on YIMBY, or “yes in my backyard” activists, to find out about law-breaking cities. 

“The bulk of how we’re going to learn about these cases is through complaints that we receive from ordinary citizens, through advocates, and other stakeholders,” said David Zisser, who leads the Housing and Community Development Department’s newly created Housing Accountability Unit. “The fact that we’ve gotten complaints about 29 different jurisdictions is a good example of how it’s working.”

San Francisco officials have been focused on passing fourplex legislation using SB 9, which would allow up to four units on single-family lots and six units on corner lots. But the most popular proposal on the table would continue to require discretionary approval, stymieing SB 9’s most powerful asset—that it allows lot splits and add-ons without needing project-by-project Planning Commission approvals. 

According to data obtained by The Standard, the San Francisco Planning Department has so far received 10 applications for projects that seek to use SB 9, but only one includes a lot split. 

No one knows how many permits cities have issued statewide to split a lot or build a duplex, as that information is not tracked in any centralized database. Nor is there a centralized way to track the slew of local ordinances cities have passed to limit its use, state officials told CalMatters.

But some lawmakers don’t see the reliance on outside watchdogs as a problem. In fact, advocates have long been the main enforcers of housing law in the state.

“It would be abnormal if we were monitoring every action by each of the 500 cities at all times,” said Sen. Scott Wiener, a Democrat from San Francisco who has been a vocal leader in the Legislature promoting housing production. “We have to have a robust advocacy network that is monitoring, reporting and sometimes filing lawsuits. In fact, it’s a healthy sign that that’s happening.”

The attorney general has sent two sternly worded letters to cities about the law so far, and the housing department is gearing up to do the same. The jury is still out on how cities will respond. 

New cops on California’s duplex beat

The state housing department received a $4.65 million budget allocation last year to build out a team of 25 staff members — not all of whom will work on enforcement full time — to make sure 16 housing laws they received explicit authority to enforce are followed.

That’s a dramatic departure from the status quo, according to Valerie Feldman, a staff attorney at Public Interest Law Project. The nonprofit legal services organization has been suing cities for decades that don’t build enough housing for low-income residents.

“It’s a big change,” she said. “But it will take time. And they will always need connections on the ground.”

Zisser, who leads the unit, said his department hadn’t received explicit statutory authority over the duplex law. One of the laws they can enforce limits a city’s ability to restrict the development of new housing, which is a concern with many of these duplex-hostile ordinances. The housing department’s main priority at the moment is the housing element, by which cities have to plan for enough housing to accommodate the growing population.

San Francisco has its own housing element process to go through, with the near-final draft and environmental review up for approval early next year. Part of the current proposal calls for fourplex legislation to help upzone the city’s westside. Whichever fourplex bill does pass is intended to pre-empt SB 9 locally. 

Neither the attorney general nor the housing department is dispensing their limited resources to track the local city council and planning meetings in which duplex law related-ordinances unfold, and in which city councilmembers say things like, “What we’re trying to do here is to mitigate the impact of what we believe is a ridiculous state law.”

Instead, they depend largely on advocates and local journalists to report on the shenanigans. That’s how Bonta’s office found out about Woodside, a Silicon Valley town that claimed immunity from the duplex law because the town, in its entirety, was a mountain lion habitat. A local newspaper first reported the story, and it went viral on Twitter — where many YIMBY activists pointed to Cougar Town as a poster child of the NIMBY (“not in my backyard”) mindset. Several news stories later, Bonta wrote the city a letter, and Woodside reversed course.

“What we’re doing is new, in terms of active, visible, aggressive enforcement, so it has a statewide implication and impact,” Bonta said. “I think we need to see how that plays out. But I think we could always do more, we could always do it faster.”

What could that look like? Bonta suggested maybe pouring more resources into enforcement and requiring that cities submit their duplex law implementation rules for state approval, as is the case for accessory dwelling unit ordinances. While he sees the value in centralization, he said that’s not the norm.

“Most laws don’t work that way,” he said. “You create the law for the state of California and you expect the locals to comply with it.”

The law is still so fresh and complicated for the average homeowner that YIMBYs have been the main cops on the new duplex law beat.

Dylan Casey, executive director of the California Renters Legal Advocacy and Education Fund, a YIMBY group, said he and an intern have spent most of their recent Fridays culling through city council and planning commission agendas for more than 200 cities, marking which weekday meetings to watch and ordinances to review. The group has sent warning letters to a few of the 64 cities they say have restrictive ordinances, and filed multiple complaints with the state — which are triggers the state uses to look into cities.

Meanwhile, two employees of YIMBY Law, another pro-housing group, with the help of dozens of volunteers across the state, have created a spreadsheet of 80 cities with restrictive ordinances and shared it with the state housing department. Homestead, a development startup looking to help homeowners split their lots under the new duplex law, has also deployed two employees to track and explain these ordinances to potential clients.

Zisser and Bonta said they plan to review complaints from these groups, developers and homeowners and step in when a law is broken. On which agency takes on what city, Bonta said, “We don’t spend too much time figuring out if it’s them or us, as long as it’s somebody.”

ADU déjà vu

Accessory dwelling units — the small studios, one-bedrooms and two-bedrooms cropping up across California’s backyards  — were technically legalized in 1982. But it wasn’t until 2016 that state lawmakers made it feasible for homeowners to actually build them by stripping away prohibitive local regulations and fees. Permits for these backyard units exploded over recent years, making up about 10% of new housing stock in 2020.

When the first laws to boost ADU construction went into effect in 2017, Sen. Bob Wieckowski, a Democrat from Fremont who has authored five ADU bills, was flooded with calls from homeowners struggling to get permits. The cries for help eventually translated to stronger enforcement: Now, cities have to submit their ADU ordinances, if they have them, to the state housing department for approval, and the attorney general can step in when the local rules don’t pass muster.

“You don’t want to spend all your money on enforcement,” Wieckowski said. “On the other hand, you can’t expect a homeowner to become the plaintiff in the lawsuit against their city.”

Cities often repeat the mantra of local control, and liken their fight against the state to David and Goliath, he said. “No, it’s the city who’s the Goliath.”

Regardless of cities’ resistance, Wiener said he expects new duplexes will take several years to materialize.

“You have to figure out, does it work on this parcel?” he said. “Is there an existing building there? Can I do a lot split? Do I have to hire an architect to see what can be designed? What will work and what won’t? And so people don’t just immediately file for a permit. It’s not surprising that it’s been a slow start.”

Housing crisis enforcement on social media

Cities and the state have been clashing over solutions to the housing crisis for years, but the new enforcement approach feels punitive for some local elected officials.

Susan Candell, a city councilmember from Lafayette and member of California Alliance of Local Electeds, a new group established last year to oppose “one-size-fits-all” housing solutions from the state, said cities were coming up with these hit-and-miss ordinances because the duplex law provides too much flexibility and not enough guidance. The housing department, coincidentally, has received a complaint about Lafayette’s restrictive ordinance, to which she responded: “We’ll take every advice. If we’ve fallen into a pit hole, I apologize.”

When Pasadena, a Los Angeles suburb, claimed in its ordinance that landmark districts would be exempt from SB 9, Bonta wrote a stern warning letter that such districts were not exempt— historic districts were — and that these could be interpreted as large swaths of the city. They also shared the warning on Twitter.

In a two-page letter response, Mayor Victor M. Gordo told Pasadena residents the state had got it all wrong, and the city was indeed in compliance. In his sign-off, Gordo “respectfully encouraged” the attorney general to get to know his city before tarnishing its good name on social media.

“By now, we should all understand that governance by Twitter is ineffective,” the mayor wrote.

The letter points to a wider shift in enforcement of housing law. Esoteric city council and planning commission meetings are now broadcast online by a growing number of YIMBY activists. Admonishments once delivered to city attorneys privately can now go viral on Twitter.

“What I see is they’re enforcing laws that historically have not been enforced. Part of that enforcement is in the right vein, and part of it is haphazard,” said David Coher, a planning commissioner for the city of Pasadena.

He attributes the visible, if haphazard, enforcement to mounting pressure on the state from pro-housing activists.

“This is playing to an audience in a way that it never played to an audience before,” he said.

Chris Elmendorf, a UC Davis Law professor focused on state housing law, said the mayor’s statement belies itself.

“Even though there may not be a very systematic way of gathering information about what cities are doing, cities are more in the public eye than they used to be. And Twitter is a big part of that story,” he said.

Bonta told CalMatters the state wasn’t yet ready to file a lawsuit against Pasadena, but would if it didn’t reverse course. His office is already gearing up to fight a lawsuit from a group of four LA County cities, led by wealthy Redondo Beach, that claims the duplex law “eviscerated” cities’ land use control. Bonta recently filed a brief in defense of a similar bill that makes it easier for local governments to zone for denser housing near transit.

“The question is, what are the points of leverage?” Elmendorf asked. “What are the things that you can do efficiently that cities will honor and that will ultimately hold up in court? And I think that’s the stuff that is really, really unsettled.”

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