Unlike Pleasanton, San Francisco Keeps its Anti-Housing Laws Off the Books

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When it comes to quelling housing development, there's the law and there's the law...
Pleasanton city fathers spent this week in conniption fits after a Superior Court judge ruled that the city can't cap its number of housing units at 29,000. Pleasanton now faces a choice of halting all commercial development in the city -- and thus alleviating the demand for places new workers might live -- or scratching the 29,000-unit limit from the city's code book.

Alameda County Superior Court Judge Frank Roesch based his decision on a California law that requires cities to make land available to accommodate their share of regional housing needs, a standard that most communities, including San Francisco, don't meet. According to Pleasanton Weekly, city council members have planned closed session meetings where they will decide whether to appeal the decision, change the city's residential zoning laws, or ban new commercial development.

But there's a completely legal way to accomplish the not-in-my-backyard goal that Pleasanton had in mind when it created its de-facto ban against new neighbors. That city, and others such as Atherton -- whose overt anti-housing laws may be affected by the ruling -- can follow San Francisco's lead and ban new housing construction in subtler, yet just as effective, ways.

The front page of Tuesday's Chronicle featured the headline "Alameda land-use ruling could reshape state." The story quotes state officials and academic wonks presaging an end to California's current situation in which anti-housing municipal zoning laws push development outside city limits in communities all over the state:

The result could reshape the landscape of California suburbs and small cities -- conceivably forcing them to reconsider height limits or increasing the density in their downtowns.
These prognostications, however, depend on the implausible assumption that these communities won't eventually figure out that they can achieve their NIMBY goals merely by copying San Francisco, which has kept out new housing construction with less-explicit, yet equally effective anti-housing rules.

Our no-apartment-construction laws achieve the same anti-new-neighbors result without the direct fuck-you to state housing requirements that the Pleasanton law spelled out.

In the same way that San Franciscans manage to talk a liberal game -- while producing a city with some of the greatest income disparity in the state -- we have erected an anti-housing legal infrastructure without ever acknowledging it as such.

Last week, for example, the San Francisco Planning Commission killed a 12-month effort by Planning Department staff to streamline the dreaded discretionary review law, which allows neighbors to effectively halt any project nearby, even if it's just a porch.

A neighbor who decides he or she doesn't like the idea of a new nearby apartment building, or even a mere addition to a single-family home --  can appeal that project's approval to the Planning Commission, under a process known as "discretionary review." In some cases, neighbors file these appeals as a way to extract "settlement" money from the neighboring project, in exchange for dropping the appeal.

If the Discretionary Review process somehow doesn't do its anti-housing work, and the Planning Commission miraculously allows a project to go forward, NIMBY neighbors still have plenty of weapons for halting projects. During the past half century, in wave after wave of down-zoning, successive San Francisco governments shut out ever more housing. Today, the most densely zoned parts of the city are sparser than the areas that were zoned lowest-density during the 1950s. In many cases, these laws can be used to halt housing projects seemingly en route to approval. New apartments can be appealed to the Board of Supervisors based on the idea that a conditional use permit allowing a deviation from zoning limits was somehow faulty, or the environmental impact review was faulty.

"Entitlement typically runs two, three, or four years. And even if you start a process, work on your entitlement, hold hundreds of meetings, and have your permits in line, someone can come in at the end and say, 'You didn't talk to me,'" said a local smart growth advocate, who didn't want to be named for fear of inciting a NIMBY rampage.

Most housing developers avoid San Francisco because they know they'll face at least two years of delays for even the tiniest projects, with the likelihood that their building may be killed  even if it perfectly abides by all zoning requirements. San Francisco rarely meets more than two-thirds of its regional housing requirements. That helps explain why the average March, 2010 listing price for a San Francisco dwelling was more than $1 million. And it's why more than 200,000 people commute to San Francisco from outside the city every day because they can't afford to live here.

Take that, Pleasanton.

"Pleasanton was a very extreme case. They made no effort to rezone any property," said San Francisco land use attorney Steve Vettel, who'd read the Pleasanton ruling and concluded it will have no effect on San Francisco. "In California land use, decision-making is completely local unless it violates state law. And the Pleasanton cap is in complete contradiction to state law."

Pleasanton isn't the only community where current laws might be challenged as a result of the recent ruling. Aforementioned Atherton: Lawyer up.

"Towns like Atherton, with one-acre minimum lots, without a single zoning for multi-family housing, might be affected," Vettel said. "In Atherton, it would be impossible for you as an affordable housing developer to build an affordable housing project. That's not the case in San Francisco. You can find land zoned for affordable housing. It may be difficult. But technically it's not impossible."

I can't imagine that NIMBYs in Atherton and Pleasanton won't soon realize that they can keep their communities rich and white without explicit anti-housing laws, just like San Francisco.
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