SB 744 is One More Attack on Community Control of Land Use

Tuesday June 29, 2004

SB 744 (Dunn), now under consideration by the State Legislature, would allow “affordable housing” developers to leapfrog over the local land use decision-making process and appeal to the state (Department of Housing and Community Development) any local land use decisions that either deny their project or impose conditions that purportedly render the project financially infeasible. The state could then order the local agency to reverse its decision and the developer and its friends could enforce this state order in court. This is quite a club for affordable housing developers to wield during the local land use decision-making process. 

This bill is one more in a growing list of state efforts, including density bonus laws, second unit legislation, and Housing Element certification procedures, that have been instigated and promulgated by the affordable housing lobby and pushed by some legislators who have either bought into the mantra of smart growth or who simply do not understand the implications of the policies they are pursuing. Needless to say, the State Department of Housing and Community Development, like most bureaucracies, is not at all averse to expanding its power and influence and telling local jurisdictions, such as Berkeley, what they MUST build. 

The affordable housing lobby is an alliance of non-profit developers, tax-exempt developers, subsidized developers, low income housing advocacy groups, smart growth gurus, and many urban planning professionals—all of whom value high density development and intensified urban population growth over most other legitimate civic values such as neighborhood preservation, reasonably limited local population growth, urban quality of life, reasonable density, and local democracy and control of land uses. The affordable housing lobby wishes to impose its narrow vision of the future on entire communities whether they like it or not and whether or not the supply of affordable housing has substantially increased. In Berkeley, despite our current above-par success in meeting affordable housing goals and despite the high rental housing vacancy rate and substantial decline in rental rates, pressure from this lobby continues unabated. 

In many communities, and certainly in Berkeley until recently, the affordable housing lobby almost ran the show. In general, affordable housing developers had been “incentivized” to build bigger and uglier residential projects with the lure of fee waivers, design and amenity waivers, HAC subsidies, land cost write-downs, Section 8 vouchers, ABAG loan guarantees, political accolade (at least in some quarters), and almost guaranteed profits. Unfortunately for them, neighborhood and preservation activists occasionally managed to slow down their train. The City of Berkeley recently undertook a worthwhile civic exercise, the Permitting Task Force, which set the framework for a land use decision-making process that would allow all stakeholders a voice and expedite better development, neighborhood-friendly development, and more rapid development approvals. Further, in the context of the current “rezoning” of University Avenue, it has become very clear that the best development outcome will emerge when all voices are heard in a thoughtful venue.  

Zoning and land use issues are very complex and speak to our shared future. In Berkeley at least, most citizen activists are not opposed to development per se. Rather, they seek a fairer development playing field, more diverse and neighborhood-friendly development, less dense development, and development that improves the quality of life for all in the long run and enhances the city of the future.  

Unfortunately, while many local politicians and decisionmakers glibly blame state regulations for the sometimes unfortunate and unpopular local land use decisions, when the chance to oppose draconian state regulations arises, they remain quite mute. Is this because many local politicians and decisionmakers are in fact in collusion with the state and the affordable housing lobby and really love the club(s) with which the state is attempting to beat us into submission? I myself have repeatedly asked the Berkeley City Council to join the League of California Cities and numerous other jurisdictions in opposing SB 744 and similar measures, to no avail. 

Berkeley’s neighborhood, preservation, and civic groups should seriously consider opposing SB 744 and similar state land grab measures. For further information you may e-mail me at bgilbertca@aol.com. 


Barbara Gilbert is rumored to be a City Council candidate.