A Daly City-bound BART train west of Dublin/Pleasanton station.

#193 Winter 2018-19 — Housing Markets

Is Local Control Good or Bad?

And how do we get more of the good and less of the bad?

A Daly City-bound BART train west of Dublin/Pleasanton station. Photo via wikimedia

A Daly City-bound BART train west of Dublin/Pleasanton station.

A Daly City-bound BART train west of Dublin/Pleasanton station. Photo via wikimedia

Going after wealthy areas when they try to exclude affordable housing is one thing that YIMBYs and housing justice activists of all stripes actively agree upon.

Even here, however, there’s a wide difference in style and approach, and some of the differences bring up startlingly fundamental questions about participatory democracy and power dynamics. In fact, different reactions to the idea of “local control” may be one of the biggest differences between YIMBYs and equity advocates.

Attacking Obstructionism

CaRLA, a legal nonprofit started by YIMBY leader Sonja Trauss, sees itself as a counterweight to NIMBY objections, especially when it’s not politic for developers to sue the towns they want to continue working in. The group is intended to be the implementation of YIMBY groups trying to walk their talk about focusing on wealthier outlying communities.

California’s Housing Accountability Act (HAA), passed in 1982, is considered an “anti-NIMBY law.” It prohibits municipalities from turning down housing projects that fit existing zoning unless they create a substantial public health danger or don’t pass environmental review. It also prohibits officials from demanding a reduction in units, or retroactively changing zoning to disallow a project. A recent change gave nonprofits standing to sue under it, and that’s mostly what CARLA is using.

Victoria Fierce, CaRLA’s co-executive director, describes a recent case the organization took on in Dublin, California, where an apartment building proposed near a BART station was causing a lot of controversy. She says one city councilor supporting the project told her that he and his wife were getting death threats as a result of that supportand asked for CaRLA’s help. The building was to be 220 units, with 11 percent affordable. “It isn’t great, but it’s the only affordable housing Dublin has built in last couple decades,” says Fierce. (Note: this isn’t entirely true. A public housing redevelopment in 2012 preserved 150 units while adding 30 affordable rentals and 14 moderate-income for-sale homes.)

“Every unit matters,” says Fierce. “It’s not even a huge project. It’s four or five stories, right next to the BART station. The city councilors were saying, ‘We don’t want tech workers, we don’t want families, we don’t want protected class A, B, and C.’ Sometimes lawsuits write themselves.” CaRLA’s lawsuit was the second lawsuit to be filed on behalf of the project. In this case the developers had brought one as well. The city settled and allowed the building to be built.

CaRLA is also happy to fight for entirely market-rate apartments in places that have been solely single-family. Fierce talks about a case the organization is getting involved with in San Mateo, a place she describes as more or less entirely luxury mansions. “They just don’t like renters.” The project is small—10 units near a commuter rail station—but it would “let renters live in a city that has banned them forever,” says Fierce. (The building is actually condominiums.) “We had to talk to the developers a bit to convince them to let us do this. Developers want to make friends with everyone. I just want to make an example of some cities, so they are afraid of liability.”

Fair Share Planning

CaRLA is not the first organization to bring legal cases against exclusionary California communities. Public Advocates, a civil rights based nonprofit has been suing the suburbs to increase affordable housing in California for decades, has had many successes. But CaRLA’s and Public Advocates’ orientation and legal strategy are so different they barely register to each other as doing similar work.

Rather than the HAA, Public Advocates focuses on California’s Housing Element Law. Under this law, municipalities are assigned a fair share of their region’s housing need every eight years, at all income levels, and must adapt their general plans, zoning, and regulations to make that possible. They are supposed to identify sites and ways to encourage development. A compliant plan is required to access various state funding sources, and the state can supersede local permitting authority of towns that are not complying, but in general enforcement remains fairly weak.

Because it can force zoning changes, the Housing Element Law “is more upstream and more systematic,” than the HAA, says Sam Tepperman-Gelfant, Public Advocates’ deputy managing attorney. Public Advocates’ goal is to “inject an equity lens” into that planning process, making sure a town is identifying multifamily sites in all parts of town, and that the sites they are picking are actually feasible for development, rather than relegated to the margins. If a municipality is trying to pass a plan that won’t actually make affordable housing feasible, Public Advocates will bring legal pressure to bear.

When the Affirmatively Furthering Fair Housing regulations looked to be in trouble at the national level, Public Advocates supported a successful push in California to pass a state version, which it also used to “break open conversations” about fair housing and planning.

Public Advocates focuses on the effects of zoning and development decisions on people, rather than on letting developers do what they want to do. “It’s important to not say single-family zoning everywhere is the cause of exclusion,” says Tepperman-Gelfant. “Single-family zoning in places that are high-resource, segregated, and have a history of excluding low-income people and people of color—it’s a problem there. And it’s a problem not because developers can’t profitably build, it’s a problem because people actually need a place to live in those communities and more choices to access more communities. Efforts to paint all geographies with one brush, or just focus on one aspect of the solution will be inadequate.”

For this reason, Public Advocates prefers working with the Housing Element Law, because it encourages planning processes that lift up the needs and voices of low-income communities. “The tools and solutions we feel are important are ones that give more power to low-income communities to advance their interests,” says Tepperman-Gelfant. “For us there needs to be an analysis of the history, demographics, power of a community, not just density and height. Who needs homes? Who may work there but can’t live there? What are the displacement dangers? The predominate focus is on what the need is.”

He also suspects that if opposition to apartments are veiled racist and classist arguments, that advocacy for luxury multifamily won’t necessarily lead to “welcome for affordable housing. . . . Just focusing on the right size and shape and density of buildings won’t address underlying things that keep people out of communities.”

Local Control

At the base, the fight over exclusionary zoning and local control of development gets at one of the fundamental questions of democracy: What things do we allow a group of people at the local level to decide for themselves, and what things should a higher level of government override in the name of values like human rights, civil rights, fairness, or equity?

YIMBY activists tend to be focused on the use of local power to be exclusionary, and the lack of voice both for the disenfranchised in those places and for people who would like to move to there. “Local control in terms of hyperlocal land-use decisions [and] project-by-project decision-making is a complete failure,” says Laura Foote, director of YIMBY Action. “We’ve run the experiment into the ground, and we’ve run the state of California into the ground running that experiment.”

“Everything happens on these hyperlocal levels,” agrees Jesse Kanson-Benanov, of A Better Cambridge, in Cambridge, Massachusetts. “Small cities of a few square miles are making land-use decisions that spill into neighboring communities, but those communities can’t show up at those meetings.”

And the people who do show up are hardly representative. A 2018 study from Boston University confirms many people’s gut feelings—the people who tend to speak at planning commission hearings are more likely to be older, wealthier, white homeowners. That does not generally bode well for existing or prospective renters.

“We need to think more deeply [about] how we get electeds to realize people who show up aren’t representative,” says Kanson-Benanov. “Should we consider projects in bulk? Make tech changes to engage more people who can’t go to hearings all the time and speak? I don’t actually know the answer, but we need to start the conversation.”

Supporting existing low-income communities in a planning process doesn’t help low-income folks who aren’t living in that community yet, which is why YIMBYs often talk of representing future residents. Despite the fact that that sets off alarm bells for everyone who’s seen a disinvested neighborhood redeveloped with newcomers in mind instead of existing residents, it’s true that when we’re talking about an exclusionary community, people who don’t live there yet but might want to are actually a group we want to consider.

YIMBYs’ reaction to this state of affairs tends to be to want to reduce local power—weaken or shorten environmental oversight tools that they say are being abused, remove public comment on developments that match existing zoning, and reduce supermajorities for zoning changes. This is largely how they get the reputation for being anti-regulation. And they want to apply these reductions everywhere. “In these kinds of laws, what’s good for the goose is good for the gander,” says Foote. “I don’t think civil rights goals will be met if we allow Marin [County] to continue on with what they’ve been doing.”

In some cases these might be straw men (environmental regulations do not appear to be a huge impediment to housing). Others, however, might have some merit. In 2017, Seattle removed much of the power of its neighborhood councils because they tended to be dominated by parochial homeowner interests.

The Value of Local Knowledge and Input

But housing justice organizers and community developers who have spend years trying to increase the say of marginalized people and residents of disinvested neighborhoods in what happens to their community, tend to see this differently. Many spend their days reckoning with the continuing fallout from disastrous urban renewal projects, which were imposed from the outside with claims that they were in the best interests of all involved. Or they are facing down smaller decisions that assume that what is best for other neighborhoods will work for them.

The bread and butter of community development has been the elevation of locally specific knowledge and local solutions. Without local buy-in and input, planning efforts tend to fall flat, overlooking basics about what people’s needs actually are, and failing to generate the kind of broad-based support that will ensure successful implementation and ongoing funding. Weak housing markets need vastly different approaches than strong ones, and differences in climate, history, infrastructure, and economy all factor in to make one-size-fits-all plans and programs sometimes disastrous.

Without local advocacy, a new Minneapolis train line would have skipped straight through some of the neighborhoods that would have benefitted from it most. Well-intentioned development rules aimed at reducing exposure to particulate pollution in Los Angeles missed the point by not understanding local housing dynamics and needs. Policies designed to create income diversity in better off neighborhoods by prioritizing new construction of affordable housing can lead to increases in vacancies in weak-market neighborhoods where housing is already affordable but in poor repair. Policies designed to mitigate climate change by making it harder to drive everywhere can disproportionately harm those communities that don’t yet have access to decent driving alternatives.

Combining this perspective with a racial equity lens, organizers tend to say the problem isn’t public engagement itself, it’s the power imbalance in who is listened to, and who has the resources and organization to speak up. They want to see power returned to those who have been oppressed, excluded, and marginalized—especially in the case of cities, where people of color and longtime residents have suffered through disinvestment and contributed a lot of work to keeping their neighborhoods together.

In Boston, says Darnell Johnson of Boston’s Homes for All, “neighborhoods are unbalanced in terms of what kind of power they have. Some have neighborhood councils, some have neighborhood associations, some don’t have anything. We lifted up a demand to say all neighborhoods should have power to have governance for themselves through democratically elected neighborhood councils.”

“One of the rules we try to play by is that the people who have historically been impacted adversely by growth policies, by restrictive housing policies, by predatory lending, by a whole number of racist institutional practices ought to be involved now, today, going into our future, planning for and benefiting from these urban growth policies,” says Russ Adams of The Alliance in Minneapolis. “How do you move forward in a way that values grassroots perspective, but accounts for historical racial injustice? Shouldn’t the local people have the most say? Yes, if we’re applying a racial equity lens that has a historic perspective.”

“To what extent are local democratic principles something that should be taken away from folks because they’ve abused it?” asks Peter Cohen, co-director of Council of Community Housing Organizations in San Francisco. “We’re talking about self-determination. When does that tenet need to be balanced against outside responsibility, accountability? What’s the performance measure? We know these NIMBYs can be a pain in the ass. But stripping away that authority is a dangerous slippery slope.”

[RELATED ARTICLE: What Is NIMBYism and How Do Affordable Housing Developers Respond to It?]

Removing all local power, instead of targeting the actual bad actors, argue California equity advocates, would disrupt planning processes in places that are trying to do right, and possibly end up with plans and development that were not as affordable or integrated as the minimum the state would have imposed.

When Foote talks about local control as a problem, it’s important to note, she especially means the ability to affect development on a case by case basis. “I like the motto ‘local control is about how you meet your goals, not whether you meet them,’ she says. “I’m more interested in universal programs and universal rights. When you have a case-by-case system, those with power will win. Sometimes low-income communities can collect power, [but more] often it will be wielded by those with wealth.”

Of course organizers who have worked on zoning overhauls or legislative campaigns will tell you it’s not only in case-by-case scenarios that low-income communities are at a power disadvantage. Seemingly universal rules when applied across different contexts have disparate effects, as anyone who has followed fair housing litigation knows.

There’s no way around building power if the goal is equity. Even if everywhere were zoned equally for certain uses, whether noxious ones like a garbage transfer station or ones that merely spark fear of change, like multifamily housing, it’s unlikely that those uses would be automatically evenly distributed. Power dynamics will still manifest—if not in public hearings, then in personal phone calls and back-room dealings, or even developers deciding not to risk the ire of powerful neighbors in the first place. Or concentrating development in places where the largest profits are currently available. It’s not surprising then that those whose power is going to be in numbers instead of individual influence would prefer a decision-making format that involves public review.

Lead with Values, and Enforce

What is under local control and what’s not has always been a dance. Portland, Oregon, might show a way forward, says Lisa Bates, professor at Portland State. The city has a formal system of neighborhood governance, with elected neighborhood associations that get funding and staffing from the city to operate. This puts neighborhoods on a more even footing with each other than the situation in Boston or other cities where certain members of affluent neighborhoods can resource an active neighborhood association that represents their interests and others can not.

“These are bodies with not inconsiderable power,” says Bates. But there are checks on that power. Portland requires these councils, in making their recommendations, to explain how they have considered equity and what the equity outcome of their choice would be. If they can’t do so, they might be sent back to the drawing board. “It doesn’t stop anyone from saying we don’t want multifamily housing here because parking, because . . .,” says Bates. “But it’s like ‘All right, thanks, and did you talk to renters in your neighborhood when you made that recommendation? What was your outreach across communities in your neighborhood? And then how does that fit into a larger equity concept?’ Man, they get so mad.” But they do it.

The equity analysis will also determine how heavily neighborhood association recommendations are prioritized at the city. They “bring decisions up to citywide level and say OK, so we have these viewpoints from different neighborhoods,” says Bates. “If we think about that from an equity perspective, which ones advance or don’t advance equity on a citywide basis?”

Balancing Act

Without federal intervention on the side of human and civil rights, Jim Crow laws would still be in effect throughout the south. Local places reliant on polluting industries for jobs would not likely have passed clean air and water rules. NIMBYism can shoulder a decent portion of the blame for the concentration and isolation of public housing developments.

On the other hand, if lower-income communities of color affected by planning and redevelopment decisions had had more say in those decisions, we might not have gotten urban renewal or poorly designed public housing. Today in many places, state legislatures that are dominated by rural legislators are using their powers of preemption to prevent their cities from addressing issues from transit funding to vacant properties to inclusionary housing.

One of the problems going on here is that we often don’t have governments operating at the appropriate scale to talk about fair distribution of housing supply, which is arguably regionally, by commute sheds. “We missed certain opportunities over the last 30 or 40 years, because there’s no regional government that could have really pushed for making denser, walkable, transit-oriented suburbs or smaller cities, so all the action is put on San Francisco,” says Fernando Martí, co-director of Council of Community Housing Organizations.

These challenges come down to some very important sets of values. On the on hand we have overarching rights and obligations to contribute to the greater whole rather than hoarding resources and opportunities. On the other, we have both practical and justice implications of locally specific histories, markets, needs, and knowledge in the context of a long history of race and class power imbalances. Figuring out the right way to balance these things is not an easy task. But it’s important to understand that that’s the question in front of us.


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