Episode 13: State Housing Mandates with Nicholas Marantz and Huixin Zheng

Marantz and Zheng, "State affordable housing appeals systems and access to opportunity: Evidence from the northeastern United States," "Exclusionary zoning and the limits of judicial impact"

Read Research Article

Episode Summary: Cities across the country have dropped the ball when it comes to planning for and building housing at all income levels — especially housing affordable to low-income residents. In response, many states have intervened. The form these interventions take varies from place to place, however, with Northeastern states relying on legal appeals by developers to deliver low-income homes, and Western states mandating local planning processes to achieve similar ends. How is that going? Professor Nicholas Marantz and Dr. Huixin Zheng join us this week to discuss the strengths and weaknesses of these different approaches, and reforms that could make them work better.

Show Notes

Marantz, N. J., & Zheng, H. (2020). State affordable housing appeals systems and access to opportunity: Evidence from the northeastern United States. Housing Policy Debate, 30(3), 370-395.
- ABSTRACT:In many U.S. states, local governments exercise extensive control over land-use regulation. Much scholarly research indicates that local restrictions on multifamily residential development have contributed to rapid housing cost increases, particularly in the West Coast and the Northeast. Such evidence has led scholars and policymakers to advocate state intervention in local land-use regulation, in order to constrain local discretion over permitting multifamily housing. This article provides the most comprehensive comparison to date of housing outcomes associated with state affordable housing appeals systems (SAHASs) in the northeastern U.S. SAHASs enable developers of certain below-market-rate and mixed-income housing projects to request an override of local land-use regulation. We describe the essential attributes of a SAHAS and provide empirical data to assess housing outcomes in the four northeastern states where such systems have been adopted – Connecticut, Massachusetts, New Jersey, and Rhode Island. Our findings are consistent with previous claims that a SAHAS can increase access to opportunity, and that the Massachusetts system has been particularly effective. We conclude by discussing features of the Massachusetts system that may explain its relative efficacy, and we describe how state and federal policymakers could improve data collection practices related to state intervention in local land-use regulation.
Marantz, N. J., & Zheng, H. (2018). Exclusionary zoning and the limits of judicial impact. Journal of Planning Education and Research, 0739456X18814924.
- ABSTRACT:Courts in the neighboring states of New Jersey, New York, and Pennsylvania have taken divergent approaches to local exclusionary zoning, which entails land use regulations restricting the development of housing affordable to low- and moderate-income households. Using difference-in-differences regression models, we assess whether this variation has affected the availability of townhome and apartment units. We also validate the use of unit type as a proxy for occupant income. We find that New Jersey’s approach was associated with increases in the stock of townhome and apartment units relative to suburban jurisdictions in New York State, but not Pennsylvania.
Zheng, H., Marantz, N. J., Kim, J. H., & Houston, D. (2021). Accessibility, Affordability, and the Allocation of Housing Targets to California’s Local Governments.
Li, L. H., Lin, J., Li, X., & Wu, F. (2014). Redevelopment of urban village in China–A step towards an effective urban policy? A case study of Liede village in Guangzhou. Habitat International, 43, 299-308.
Guo, Y., Zhang, C., Wang, Y. P., & Li, X. (2018). (De-) Activating the growth machine for redevelopment: The case of Liede urban village in Guangzhou. Urban Studies, 55(7), 1420-1438.
Kapur, S., Damerdji, S., Elmendorf, C. S., & Monkkonen, P. (2021). What Gets Built on Sites That Cities “Make Available” For Housing? Evidence and Implications for California’s Housing Element Law. UCLA Lewis Center for Regional Policy Studies.
Freemark, Y. (2021). Lessons from France for Creating Inclusionary Housing by Mandating Citywide Affordability. Urban Institute.

Key Takeaways from the Research

SAHAS Paper:

‘Whereas states typically delegate significant authority over land-use regulation to local governments, a SAHAS empowers developers of BMR and mixed-income housing to challenge local land-use regulations. At least four states—Massachusetts, New Jersey, Connecticut, and Rhode Island—have adopted a SAHAS (Marantz & Dillon, 2018). In these states, developers of BMR housing projects, as well as certain mixed-income housing projects (which combine BMR and market-rate units), can use a SAHAS to override local land-use regulations. A SAHAS applies only in municipalities that have not fulfilled their fair-share housing obligations, as specified by state law. For example, in Massachusetts, projects that reserve 25% of units for households at or below 80% of area median income (AMI) can qualify for the SAHAS,1 and municipalities are exempt from the SAHAS if at least 10% of their housing stock satisfies the state’s fair-share standards, described below. Local governments have a powerful motivation to attain exemption on their own terms, because if they do not, then a developer proposing a qualifying project has access to the SAHAS, significantly curtailing local control over the project.”

“A combination of four attributes differentiates SAHASs from other forms of state intervention in local land-use regulation:
- “1. If a local government has not fulfilled its fair-share housing obligations, then qualifying BMR and mixed-income projects need not comply with local zoning requirements. Thus, for example, a multifamily project might be built in an area zoned for single-family use. Alternatively, a multifamily project might be built in an area where such projects are allowed as a conditional use (i.e., subject to approval by a local zoning board), even if it does not satisfy all of the mitigation requirements for a conditional use permit. (In the absence of a SAHAS, local zoning boards often have broad discretion to deny such permits.)
- “2. A developer proposing a qualifying project is eligible to request an expedited appeals procedure if the local government denies the proposal or approves it subject to conditions that render the project economically infeasible. This expedited procedure can significantly reduce a developer’s legal fees and carrying costs.
- “3. The expedited procedure favors the developer, because the local government bears the burden of proving that its requirements are reasonable, in light of the regional need for housing. This arrangement shifts the conventional burden of proof, which—in the absence of a SAHAS—requires the developer to demonstrate that the relevant regulations are unreasonable.
- “4. A developer who prevails is generally entitled to a building permit. This builder’s remedy gives developers meaningful assurance that the appeals process will culminate in the opportunity to build the proposed project. In the absence of the builder’s remedy, a local government might simply be required to amend its zoning ordinance, a time-consuming process which provides no assurance that a particular project will be approved.”

“The 55 upper income Massachusetts municipalities have 4.70 BMR units per 100 total units, on average, compared with 3.24 in the 132 upper income New Jersey municipalities, 2.60 in the 12 upper income Connecticut municipalities, and 2.52 in the single upper income Rhode Island municipality. The 57 upper middle-income Massachusetts municipalities have, on average, 4.83 BMR units per 100 total units, compared with 2.81 in the 108 upper middle-income New Jersey municipalities, 3.58 in the 26 upper middle-income Connecticut municipalities, and 4.45 in the 14 upper middle-income Rhode Island municipalities. In the middle-income Connecticut, Massachusetts, and Rhode Island municipalities, the percentage of BMR units is at least 5%, whereas only 2.43% of housing stock consists of BMR units in the middle-income New Jersey municipalities. Notably, the Massachusetts municipalities in all three income categories have similar percentages of BMR housing (4.70–5.00%), whereas there is more variation between income categories in the other three states. The New Jersey municipalities have a significantly lower proportion of BMR housing in each income category than their Massachusetts counterparts do, although the lower reported proportions in New Jersey may be partially attributable to the possible lapses in reporting described above.”

“Table 7 reports the regression results with robust standard errors for middle- to upper-income tracts and low-poverty tracts. For both samples, holding all else equal, LIHTC projects are more likely to be located in the Massachusetts, Connecticut, and Rhode Island tracts than in the New York State tracts. On average, the odds of LIHTC development, rehabilitation, or preservation occurring in the sampled Massachusetts tracts are roughly 2.5 times greater than in the sampled New York State tracts, significant at the 1% level. The average sampled Rhode Island tract has the largest relative odds, ranging from 4.5 to 5.5 times that of the average sampled New York tract, for middle- to upper-income and low-income tracts, respectively, significant at the 1% level. Notably, the relatively small number of sampled tracts in Rhode Island, indicated in Table 6, suggests that these magnitudes should be interpreted cautiously. In the average low-poverty Connecticut tract, the odds of a LIHTC project are 2.6 times greater than in the average sampled New York tract, significant at the 1% level. For middle- to upper income Connecticut tracts, the odds ratio is 2.1, significant at the 10% level. The odds of LIHTC development, rehabilitation, or preservation occurring in the sampled New Jersey tracts are not different than those in the sampled New York tracts at conventional levels of statistical significance.”

“Across categories (i.e., middle-income, upper middle income, upper income, and low-poverty), the proportion of LIR [low-income renter] households in the sampled Massachusetts tracts is generally higher than the comparable proportion in the sampled New York State tracts, and the proportion of NRBLIRs [non-rent-burdened low-income renters] is consistently higher in the sampled Massachusetts tracts. For example, 6.4% (±0.3%) of households in the Massachusetts upper income tracts are LIRs, compared with 3.8% (±0.2%) in the New York State upper income tracts (see Table 8, row 13).16 Moreover, the proportion of NRBLIRs, relative to all households, is roughly 2–3 times higher in the Massachusetts upper income tracts compared with the New York State upper income tracts (i.e., 1.4%, ±0.2% in Massachusetts vs. 0.5%, ±0.1% in New York State; see Table 8, row 15).”
- “The results for the other three SAHAS states are less consistent across samples” and smaller in general.

Judicial Impact paper:

“Courts in the neighboring states of New Jersey, New York, and Pennsylvania have taken divergent approaches to exclusionary zoning, and we assess whether this variation has affected the availability of LMI housing. In New Jersey, the state’s highest court interpreted the state constitution to require municipalities to accommodate their “fair share” of LMI housing, and it fashioned a set of remedies to implement this requirement. New York State law, by contrast, does not provide powerful legal remedies to compel suburban jurisdictions to accommodate LMI housing. The Pennsylvania courts typically require municipalities to accommodate a diversity of land uses and have imposed some constraints on large-lot single-family zoning. But the Pennsylvania courts have not embraced New Jersey’s “fair share” requirement for housing restricted to LMI households. This variation among the three states, combined with their geographical proximity, permits empirical assessment of judicial efforts to combat exclusionary zoning.”

“Judicial treatment of exclusionary zoning varied significantly among the three states of New Jersey, New York, and Pennsylvania during our study period (1970–2010). In 1975, the New Jersey Supreme Court required municipalities to accommodate their “fair share” of LMI housing. In 1983, this court created a set of remedies and enforcement mechanisms to ensure local compliance by empowering developers of BMR housing units to challenge restrictive local regulations. This judicial mandate triggered legislative action, resulting in an elaborate system for the planning and development of LMI housing in New Jersey suburbs. By contrast, New York State’s highest court announced a principle aligned with New Jersey’s fair share approach, but it never imposed a set of remedies to ensure compliance. Pennsylvania has diverged from both New Jersey and New York, inasmuch as its judicial doctrine has generally been more solicitous of developers, although Pennsylvania courts have not embraced New Jersey’s “fair share” requirement for LMI housing.”

“Changes in the stock of townhome units in both states within the northern study area followed a roughly parallel trend from 1970 to 1990. By contrast, after 1990, the stock of townhome units continued to increase in northern New Jersey, but remained essentially flat in the New York State jurisdictions. If the increased number of townhomes and apartments in northern New Jersey reflected only changing consumer preferences for denser housing, then we would not expect to see such a divergence. The stock of apartment units followed a similar trajectory on both sides of the state line in the northern study area, although it increased at a slightly higher rate in northern New Jersey than New York State after 1990. In the southern study area, the stock of townhome units consistently increased at a higher rate in Pennsylvania than in New Jersey. The stock of apartment units increased faster in Pennsylvania than in New Jersey from 1970 to 1980, but increases in the two states were quite similar after 1980. The univariate time trends thus suggest that, within the northern study area, the SAHAS was associated with increased townhome and apartment development in New Jersey.”

“Our regression models, summarized in Table 3, indicate that the effect of New Jersey’s SAHAS varies between study areas. In the northern study area, the SAHAS is associated with increases in the number of townhome and apartment units. For townhomes, the association is statistically significant at the 5% level, and the coefficient of 0.27 suggests that the SAHAS was associated with a 27% increase in townhome stock in northern New Jersey, relative to New York State jurisdictions. The SAHAS is associated with a 7% increase in apartment units in northern New Jersey, significant at the 10% level. In the southern study area, the SAHAS is not associated with changes in the stock of apartments or townhomes at conventional levels of statistical significance. The coefficients on the control variables are generally consistent between the two study areas.”

A great quote: “Zoning is a means by which a governmental body can plan for the future—it may not be used to deny the future…to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring” -Pennsylvania Supreme Court, 1965

Transcript

Shane Phillips 0:04
Hello, this is the UCLA Housing Voice podcast and I am your host Shane Phillips. Our co-host today is Paavo Monkkonen, and our interview features Professor Nicholas Marantz and Dr. Echo Zheng of UC Irvine. As we've mentioned in recent episodes, California cities are in the process of updating their eight year housing plans in a state mandated document known as the Housing Element. This approach where cities have to plan for a pre-determined number of units reserved for low and moderate-income households, as well as unrestricted market-rate units is really just one strategy for managing growth and trying to improve housing affordability. In a number of Northeastern states, they take a very different approach that doesn't involve much planning. Instead, they set low income housing goals for their cities, and give developers a variety of streamlining options, appeals and exemptions to help them build affordable homes in those cities if their goals are not being met. The planning and appeals-based approaches both have strengths and weaknesses, and as we discussed, there's a lot of variation even within each of those categories. The four northeastern states that Nick and Echo evaluate in one of their studies all fall under the appeals-based system category, but the way they design and enforce their programs makes a real difference for production of affordable homes. And the same can be said for planning focus strategies like those in California. Even for us, this is a weezie topic but it's also an extremely important one because these state mandates have a huge impact on the overall production of housing, the amount of housing built specifically for low and moderate-income households, and the distribution of that housing between different jurisdictions, and between higher and lower resource neighborhoods within jurisdictions. Understanding how different states try to achieve these goals and how successful those efforts have been or not, is really essential for those of us who care about housing affordability and equity. I learned a ton from this interview and these papers, and I am sure you will, too. The Housing Voice Podcast is a production of the UCLA Lewis Center for Regional Policy Studies, and you could contact me with questions or research paper ideas at Shanephillips@ucla.edu. Or you can just tweet at me. Alright, let's talk to Nick and Echo.

Paavo Monkkonen 2:24
All right, well, I'm so excited to welcome our two guests to the podcast this week, Nicholas Moran's Associate Professor at the UC Irvine school of social ecology, and Echo Zhang, a postdoctoral researcher at UCI as well. Welcome to the podcast. And thanks so much for joining us to talk about this extremely wiedzy esoteric topic that is State Housing planning systems and their impacts.

Nicholas Marantz 2:48
Thanks for the invitation.

Echo Zheng 2:49
Thanks for having us.

Paavo Monkkonen 2:52
And then Shane, you want to ask them a provocative question to get us going.

Shane Phillips 2:56
Yes, very, very provocative one we've asked before. So we try to ask this, we're trying to make it more of a consistent thing. If you were giving us a tour of your city, what would be the number one thing the top thing you'd want to show us and you're in Irvine, which is an interesting place so you can choose to make it an Irvine tour or it can be you know, wherever you're from somewhere you've lived in the past totally up to you.

Echo Zheng 3:21
Okay, yeah, sure. Um, well, I'm living in Irvine right now. But I actually want to take you to the city where I went to high school for, Guangzhou it's a Chinese city in southern part of China, and Paavo, you're doing a wave. I assume you've been there.

Paavo Monkkonen 3:40
Very excited.

Fantastic city. I used to go there.

Echo Zheng 3:42
Yeah, so first thing we're gonna get some OG dimsum, so awesome dim sum places, and food aside we're going to try the metro system, of course not during the peak hour, peak hour is extremely packed but other than that, I would say the transportation system is very convenient, and clean and really nice. That's how I got around during my three years high school there, and it's also fun to just walk around random residential areas, you will find yourself surrounded by 30 to 50-story buildings in like a really nice complex. So it's a totally different urban vibe from urban areas in the United States, especially here in Irvine.

Paavo Monkkonen 4:35
And we could make this a South China podcast instead of State Housing planning the United States because I want to talk about the urban village redevelopment stuff, I don't know if you've been following all the different ways...

Echo Zheng 4:46
I read that paper.

Paavo Monkkonen 4:47
We could put some stuff in the show notes. There's some really interesting redevelopment stuff. And have you been on the high speed rail to Hong Kong? It was completed, I don't know five years ago or something or more.

Echo Zheng 4:59
Umm, I've riden the metro or train driver in Hong Kong yeah, but probably not the high speed, right? Yeah,

Paavo Monkkonen 5:07
Yeah

Echo Zheng 5:08
Hong Kong is really packed out, like next-level packed, compared to cities in mainland China.

Paavo Monkkonen 5:13
But surprisingly livable, I would say like, from the outside, it seems jhyper-dense, but it's a livable city. Sorry,

Echo Zheng 5:20
Because you can do a lot there.

Nicholas Marantz 5:22
It's Nick. All right, well, I can take you around Irvine.

Shane Phillips 5:30
I was hoping one of you would

Nicholas Marantz 5:31
And I'm just going to tell you what I actually do when folks are visiting Irvine, which is I take them to Crystal Cove State Park, which is a short drive from the Irvine Campus. And it's a stretch of beautiful preserved beach and inland Chaparral canyons. And there's a slight housing angle because there are a bunch of old beach shacks that have been preserved and some of which have been refurbished and some of which are in the process of being refurbished. And so it's a great walk, and a great place to clear your head after you've spent a day working on complex issues of the state housing policy.

Shane Phillips 6:20
You could just reflect on how ineffective it has been in that area. So we're going to be talking about, this is going to be a little bit of an odyssey here today, we're talking about a couple papers authored by Nick and Eco, and a report that they co-authored, all of which address this issue of state intervention in housing plans in different ways. And so state intervention here in California has really become kind of central to how we approach housing policy in recent years, with laws that make it easier to build accessory dwelling units, changes to the regional housing needs assessment, and the housing element that are requiring cities to plan for more housing than they did in the past. Most recently, we have Senate bill nine, which allows up to four homes to be built on most single families on parcels in the state. There's a lot to learn from our own state's history I think, but we're not the first to, you know, resort to state intervention, especially when it comes to planning for low-income housing. And so to get us started, I think it'd be helpful, you know, just to get a primer on why places have resorted to state intervention in the first place. Housing and land use policy have traditionally been left to local governments, as we know, with state governments mostly not interfering with local decisions, especially on things like zoning. So what have been some of the consequences of this deference to local control? Like what's at stake here?

Echo Zheng 7:45
Yeah, so one of the direct consequences is that we don't have enough housing built because in general, there is strong local opposition to housing. And what's at stake is that housing gets really expensive. And I'm sure we all know about that we live in Southern California, and if you look at the Bay Area, that's even more expensive. And you have other related consequences like people have to commute really long to their work, oftentimes, because they don't find housing affordable, that's near to their jobs, or other everyday locations. And in areas like Southern California, people often have to double up with other family members or long family members to lower the cost of housing. And that could potentially have like a public health implication, especially these days in COVID time, and you live in a crowded housing unit.

Shane Phillips 8:49
Yeah, of the top 1% most overcrowded census tracts or zip codes in the country, but half of them are just in Southern California alone. So we have a really severe overcrowding problem for sure.

Nicholas Marantz 9:00
I would also add that there's a civil rights angle here as well in that local land use regulation was has been used as a tool of racial and ethnic segregation, in addition to income-based segregation, and so state intervention might be necessary in order to undo that legacy of racist local land use regulation. Yeah, yeah.

Shane Phillips 9:28
And so to address at least some of these issues, a few different models for state planning or state intervention have evolved over time. And our colleague at UC Davis Chris Elmendorf, he refers to these as the North Eastern model and the West Coast model. But as Paavo has said, and others have said, there is a lot of overlap between these two approaches. So several northeastern states use what you call state affordable housing appeal systems, or SAHAS. I don't know if you seh-hass or what here, but I'm just gonna say appeal systems maybe from now on. And they have these to make sure that low-income housing gets built, and it's actually distributed across jurisdictions. So it's not just about building enough of it and making sure it's built in a diversity of places and high-income places as well as low-income places. So can you give us an overview of these different approaches this sort of northeastern model and the West Coast model?

Nicholas Marantz 10:26
Sure, I think the simplest difference is the West Coast model tends to rely very heavily on planning whereas the North Eastern model doesn't necessarily involve planning at all. And so in one of the papers that we're going to be discussing today, we lay out four attributes of an appeals system. So the first is that if a local government hasn't fulfilled its fair share housing obligations, and these are obligations that are established by state law, then proposed projects that have below-market rate housing don't need to comply with local zoning requirements, right? So that's pretty important so for example, a multifamily project might be built in an area zoned for single-family use.

Paavo Monkkonen 11:21
Insert mind blowing emoji for Californians here. I think I think that's something that's under appreciated by California says that, you know, that this is happening in Massachusetts.

Nicholas Marantz 11:34
Yeah, and so the second piece is that if a developer proposes a qualifying project, then that developer can request an expedited appeals procedure if the local government denies the proposal, or if the local government approves it, subject to conditions that render the project economically infeasible. That's important because time is money, in particular in real estate development, and this can really reduce developers' legal fees and carrying costs. And so the third feature is that there's a shifting of the burden of proof, so normally in land use law, there's a presumption that local governments actions are valid under an appeal system, like the ones that we're describing, that presumption shifts, so the local government has to demonstrate that its regulations are valid, rather than the developer having to show that the regulations are invalid. So that favors the developer means that the developer is more likely to win. And then what happens when the developer wins is also really important. When the developer wins, the developer generally is entitled to a building permit. So you could challenge a local zoning ordinance and win. And then the court would say, well, the local government has to change its zoning. Well, that's not a win for the project, because then the government goes back, revises, its zoning ordinance takes a while to do that, and maybe the revised zoning ordinance isn't revised in a way that makes the project feasible.

Shane Phillips 13:24
So how does that compare, so that's sort of the North Eastern model...

Nicholas Marantz 13:28
Yeah!

Shane Phillips 13:29
... you know, in the case of the West Coast, or California style, at least until recently, is it more just, you know, we say, you have to make plans for this, and then it's just sort of up in the air after that. There's not a lot of follow-up, is that kind of our approach here?

Nicholas Marantz 13:46
Yes. I mean, it has been until recently.

Echo Zheng 13:51
Yeah, I will say there are more follow ups than before, slightly more but yeah, in California, it's mostly a planning mandate so the state government imposes this housing obligation, and then local governments need to plan for this housing targets or obligation. And actually, there are many detailed requirements in state laws in terms of how these plans need to be generated, if that counts of part of the follow-up, but these requirements are fairly new. I think they were slowly added to state laws beginning in 2017.

Paavo Monkkonen 14:33
Yeah, And I think, so I've just been teaching a class on this topic, and I came up with what I think is a useful historical anecdote to kind of separate the two in people's minds. So if you will, can we go back to 1969, and think about California and Massachusetts because California's housing element law started in 1969, and so did 40B, which was the first of these appeals systems. And California now is a democratic stronghold but in 1969, they were voting for Nixon, and you know, it was a conservative state. And so the housing element law was actually started by the Building Industry Association. It was not an "open up the suburbs" kind of bill, which was, you know, the Massachusetts 40B was a civil rights bill to directly attack snob zoning and open up these exclusionary suburbs. California's bill, I was thinking of a good analogy, it's like an "open up the farmland" bill, right? Because the idea of it was subdivision developers were mad at local governments putting a bunch of rules on them, and they wanted to develop vacant land.

Nicholas Marantz 15:36
Right and greenbelt.

Paavo Monkkonen 15:39
Exactly. And so for a long time, it was focused on making vacant land available to developers. And like until now, it's finally become something like, you know, with this idea of affirmatively furthering fair housing, and as we'll talk with kind of the way, need has allocated later in the podcast, I think it's become something more like a with a civil rights angle, but it definitely didn't start out that way.

Nicholas Marantz 16:02
Yeah, I did find that anecdote, very useful.

Paavo Monkkonen 16:06
Pete Wilson carried the bill, Reagan signed it. I mean, this is like Dukakis, the history is fascinating, because Dukakis doubled down on the 40 B and threw money at it and kind of made it effective. And like meanwhile, Reagan is over here in California not doing that.

Shane Phillips 16:23
I mean, those days were weird. Generally, the you know, the Nixon administration signed the Clean Air Act and the Clean Water Act like there was some strange stuff going on back then. So we're gonna finally get to the first paper here in a little detail. And that one is called State Affordable Housing Appeals Systems and Access to Opportunity: Evidence from the Northeastern United States, this was published in Housing Policy Debate. In this paper, you evaluate these appeal systems in four states: Connecticut, Massachusetts, New Jersey and Rhode Island, and you also compare their outcomes to New York State, which does not have one of these affordable housing appeal systems. So what did you find there?

Nicholas Marantz 17:02
Well, we found that the evidence suggests that these systems increase the amount of deed restricted below market rate housing, we found that the Massachusetts system is particularly effective. And we also found that it seems to be effective in putting affordable housing or making housing affordable to lower-income households in higher income census tracks.

Shane Phillips 17:34
Right, right.

Nicholas Marantz 17:35
So that's the big takeaway from the paper is that relative to nothing, the evidence suggests that these systems do something. Now it's correlational evidence, right, not causal evidence. So we can't be 100% sure that it is attributable to these systems, and not something else. But the evidence is consistent with that account.

Shane Phillips 18:02
Yeah, and in Massachusetts, it had the, you know, highest percent of units that were income restricted for low income households, in its high income neighborhoods as well, the upper income, (and) upper middle income, but I should say, we're still talking about it was around four and a half to 5% of total units, and that was the best of the four states. And in Massachusetts, the 40B program, you have all of those rights given to developers that allow them to build even if it doesn't, you know, meet the local zoning requirements and so forth, only in cities that have not provided that don't have at least 10% of their units. Income restricted, right?

Nicholas Marantz 18:45
Yes, and it's actually the, now we're getting deep in the weeds....

Paavo Monkkonen 18:52
We're here for it, worse than that...

Nicholas Marantz 18:56
10% of the units meet the requirements of the law. So if you have a mixed-income rental project, in which 75% of the units are market rate units, all those market rate units and the below market rate, count towards the 10%.

Shane Phillips 19:16
Ahhh. But in this four and a half to 5%, you're not counting those in that percentage, right? This is just for which cities are exempt from to get out of it.

Nicholas Marantz 19:28
That's correct, that's one of the contributions of this paper.

Shane Phillips 19:31
I was gonna point out that, you know, you have to hit 10% to be exempt. And yet, the averages is a little under half of that in a lot of these cities. And so I was wondering, like, why aren't people building more, but it sounds like maybe a lot of them actually are hitting that 10% exemption or that threshold, it's just that many of those units are not actually affordable, that is in projects that took advantage of this exemption.

Nicholas Marantz 19:57
Yeah, and there there has been a lot of movement towards the 10% threshold measured as of 2010. So there's gonna, there's now the 2020 census numbers are coming out, some municipalities that were above 10% may fall below 10% but we'll have to see.

Paavo Monkkonen 20:19
And I guess while we're on this 10% topic, I was wondering if you could talk a little bit more about the data you use, because it's an interesting database, and one that we don't have I don't think in California in terms of kind of numbers of affordable units by municipality, as recorded by the state government.

Nicholas Marantz 20:37
Yeah, so we went to each state government, and we basically said, "can you share with us the number of below market rate deed-restricted units in each municipality". New Jersey, and Connecticut, and Rhode Island all said, "Sure", and Massachusetts said "No". The reason they said no is because of state privacy law that they believe they might have been violating, if they gave us municipal-level counts of deed restricted below-market rate units, and so what they would give us were aggregated counts if we said, "okay, well, these are the municipalities with above moderate incomes"

Paavo Monkkonen 21:30
Okay. Got it, interesting.

Shane Phillips 21:31
So you don't know how it broke down city by city, you just have to average?

Nicholas Marantz 21:35
Yeah.

Shane Phillips 21:36
Okay

Echo Zheng 21:37
I think they actually grouped them for you right now, they just sent you the aggregated data instead of a detailed data set.

Shane Phillips 21:45
Yeah, okay. So Massachusetts approach seems to be the most effective across a variety of metrics - ore below market rate units in high-income and low-poverty neighborhoods, more low-income renters living in these areas, and fewer of them are actually rent burdened. What are the different things that Massachusetts is doing that you would attribute this to, and I'll just throw in one thing that I thought was interesting kind of calls back to an earlier interview we did with with Professor Minji Kim, so the appeals are reviewed administratively rather than judicially. And I think this just kind of, you have people who it's their job to assess the, you know, validity of these appeals. And they are actually experts in this and they've been doing it for a long time, as opposed to, you know, how we do a lot of this in California, as you throw it to a judge who maybe sees a few of these a year, every decade or whatever, and is not an expert. So this, this idea of, you know, administrative or bureaucratic competence comes into play, but I know there's a lot more going on here.

Echo Zheng 22:50
Yeah, um, I think a lot of it has to do with the four attributes that Nick just described, and like you mentioned, the expedited administrative review. And then the other thing is for developers that, that when the appeals, they actually get the comprehensive permit. So it's a permit that consolidates everything you need from local governments in order to build this project. And the timeline is fairly short for this process. Because if you compare that compared this timeline with, like, regular timeframes of entitlement in California, it can take like two to three years to receive an entitlement. And entitlement itself doesn't even authorize the construction of the of the unit.

Shane Phillips 23:40
So right, you still need the permit.

Echo Zheng 23:42
Yeah, so having that comprehensive building permit granted to developers, I think that's a very powerful, powerful provision here. And the other thing I want to mention is that in Massachusetts, there's something called friendly 40 B, which means that local governments will work with developers to figure out a place and the kinds of projects that both parties are interested in building because with, with the 40 B system in Massachusetts, local governments really have this strong incentive to try to to receive immunity from builders remedy on its own term. There are probably similar things in other states, but I just like the sound of friendly 40 B in Massachusetts.

Paavo Monkkonen 24:40
Can't we all get along?

Nicholas Marantz 24:42
Yeah, I think that's a great list. The one thing I would add, if we're comparing Massachusetts to the other northeastern states, is that the standard in Massachusetts is pretty simple, right? It's this 10% threshold, and so New Jersey, which has a long history with affordable housing appeals systems, the standard is very complicated, and there's long been a very complicated procedure for determining how many units a municipality is obliged to accommodate. And that results in appeals and litigation about municipal obligations. And so it's helpful, I think, to have this admittedly arbitrary, but simple standard. And I think that that's one of the things that has led to the relative effectiveness of the Massachusetts system. Another thing that I think is worth mentioning is that the Massachusetts system I think is very good, relatively good, at generating what I would call middle-income housing; there's middle income market rate housing, which is in these projects, but also the deed-restricted units only have to be affordable at 80%. of area median income, right? So we're not talking about units that are affordable to households with extremely low incomes. Now in conjunction with housing vouchers, maybe those units become affordable to households with extremely low incomes. But one consequence of that is that these projects can pencil for developers right because the below-market rate units are subsidized almost entirely by the market rate units in these projects. So there's not a lot of financial public subsidy coming into these projects.

Shane Phillips 26:41
And I think I think in Massachusetts , you can be exempt or you can take advantage of this if your project is at least 25% affordable, right?

Nicholas Marantz 26:49
It's 25% affordable at 80% of ami or 20% affordable at I think 50% of AMI, but tellingly...

Shane Phillips 26:58
Okay, yeah,

Nicholas Marantz 26:59
.... developers take advantage much more frequently of he 25% affordable at 80% of AMI.

Shane Phillips 27:07
Yeah, yeah.

Paavo Monkkonen 27:08
Yeah, I think and from other California listeners that are involved with our process, and for me, in particular that has seen how cities use the complexity of our process to game outcomes and lobby outcomes. I think that simplicity theme is really important to highlight not only the simplicity, like you mentioned in where it applies, like where the builders remedy applies, but also in the builders' remedy itself. So you know, if you think about SB 35, here, that's kind of a very light version of what a builder's remedy could be, you know, overriding local zoning, and I don't think 40 B has prevailing wage or other kinds of requirements that SB 35 projects have to have. Also, Nick, I think you've mentioned to me before, like the kind of spillover impacts of the standardized, comprehensive permitting process, is that is that something am I remembering that correctly - that other non-40B projects are able to use this as well?

Nicholas Marantz 28:03
Yeah, well, so one of the things you hear a lot if you participate in debates about California housing policy is the developers are very reluctant to sort of challenge local governments with which they may be having ongoing relationships. There's a group of developers, a set of developers in Massachusetts, that basically 40 B is sort of their bread and butter. It's to their advantage to be able to credibly threaten to use the 40B process to build the projects in a municipality. This goes back to what Echo was saying before about friendly 40B projects, right, municipalities have an incentive to work with developers to make sure that projects that are acceptable to local residents get built. But also, there's not the same disincentive for a developer to go up against a municipality, right? It can, in a sense, be a win win for developer, if a developer doesn't want to build a 40 b project, they say we're going to build a 40 B project, if you don't let us build a project we want to build.

Shane Phillips 29:16
Thats unfriendly 40B

Nicholas Marantz 29:18
And for their worst case scenario is that they build a 40 B project, which from my perspective, is the best case scenario, because then you get below market rate units in there as well.

Paavo Monkkonen 29:30
Yeah, so in terms of effectiveness compared to other northeastern states, how do the details of the builders remedy in Massachusetts, do you think shape its effectiveness there? I mean, because in other states, the builders remedy isn't as strong.

Nicholas Marantz 29:45
You know, I don't think it's as much that the builders remedy itself isn't as strong, it's that it's harder to get to the builder's remedy or as in the case of Connecticut, so Connecticut requires some units to be affordable below 80%...

Echo Zheng 30:07
50 probably.. 50

Nicholas Marantz 30:09
Yes, so it's harder to make projects pencil also, Connecticut, I believe does not provide a comprehensive permit, right? So you still have to navigate multiple permitting processes in order to get the project approved.

Paavo Monkkonen 30:25
Right.

Nicholas Marantz 30:26
And then in New Jersey, it's just frequently you end up arguing about what the municipalities liability responsibility to accommodate its fair share actually is.

Shane Phillips 30:36
Simplicity seems to be the name of the game. And I mean, not to be too critical of California's approach recently, because I think we're at least moving in the right direction in some respects, but we are certainly not making it less complicated in the recent years. So I think it's a good time to move on to the next paper because we still have a bit to get through. And this one is called Exclusionary Zoning and the Limits of Judicial Impact, and you both authored this as well and published it in the Journal of Planning Education and Research. actually, in 2018, about a little over a year before the paper we just talked about, but this one's looking at the judiciary's role in all of this, and whether these kinds of fair share state interventions are less effective maybe or maybe more when they originate in the courts, as opposed to the legislature. So you're comparing Northern New Jersey to New York, which is just on the other side of the border, and are part of the same metro area, and southern New Jersey with Philadelphia, which is also just same metro but two sides of a border.

Nicholas Marantz 31:40
That's actually different metro, New Jersey is...

Shane Phillips 31:44
Oh those are different metro areas?

Nicholas Marantz 31:45
Yeah.

Shane Phillips 31:46
Okay. Okay. In the case of Philadelphia, yeah, New Jersey. Oh, yeah, the northern and southern New Jersey are different metro areas, but the southern New Jersey and Philadelphia are the same, right?

Nicholas Marantz 32:00
Correct.

Shane Phillips 32:01
Yeah, okay, if I didn't say that, right.

Paavo Monkkonen 32:03
Turns out a lot of Philadelphia is in New Jersey.

Shane Phillips 32:07
So New Jersey is important here because its affordable housing appeal system came out of the judiciary out of the courts, and specifically two really well-known cases in you know, planning world, known as Mount Laurel I, and in Mount Laurel II. So can you give us a little background on what those cases were about and how those shaped planning a below-market housing in the state?

Nicholas Marantz 32:30
Sure, I could take this one.

Shane Phillips 32:33
You are the lawyer.

Nicholas Marantz 32:35
So the Mount Laurel case is a very famous case in inland use law circles and the southern Burlington County NAACP sued the town of Mount Laurel. So this was very clearly a civil rights case. And the problem was that Mount Laurel was making it impossible to build a housing development that would have been affordable to families with low and moderate incomes. And so it went all the way up to the New Jersey Supreme Court, and the court provided a novel interpretation of the New Jersey State Constitution. So the court said that a developing municipality, although court didn't define what a developing municipality was, a developing municipality was obliged to affirmatively afford the possibility of low and moderate-income housing development commensurate with its fair share of the regional need for low and moderate-income housing. So we've got developing municipalities that have to, "affirmatively afford potential for low and moderate income housing development commensurate with their fair share of their core regional need". We've got these four undefined terms that the court says municipalities have to now abide by this ruling without giving a ton of guidance. And also in this verse...

Shane Phillips 34:10
This is sounding kind of like CEQA to me, getting echos of CEQA here,

Nicholas Marantz 34:15
This decision is issued in 1975, and there's also no builder's remedy that the court announces. So the court doesn't say what the remedy is, it just says that we expect that Mount Laurel and other municipalities will revise their zoning ordinances to accommodate low and moderate income housing. That expectation proved to be somewhat optimistic. And eight years later, they the court heard the Mount Laurel II case and citing widespread non-compliance with the rule that it had announced in the first Mount Laurel decision, the court established a system that was intended to expedite the adjudication of fair share disputes by lower courts, and it lowered the burden of proof for parties challenging exclusionary zoning ordinances, and emphasize that the builder's remedy would be readily available. The court also said we would much rather that the legislature take care of this, but the legislature didn't take care of it, or at least having taken taking care of it in the intervening eight years, and so the courts' hope here was to push the legislature to take some action.

Shane Phillips 35:32
Yeah, and I was talking with Paavo just before this, about how it's strange how well known Mount Laurel is for all its complexity, and, you know, based on the previous paper, not all that much effectiveness compared to the 40 B which prior to reading your paper I don't think I'd ever heard of. So broadly speaking, since we're comparing this to New York and in Pennsylvania, how does the approach in New Jersey, you know, how they address exclusionary zoning in particular and below market and middle-income housing, how does it differ from New York's approach?

Nicholas Marantz 36:05
So in New York, the highest court in the state also in 1975. The same year, the first Mount Laurel decision issued a decision that sounded a lot like the Mount Laurel decision, Laurel I. But unlike the New Jersey State Supreme Court, the New York court never followed up that first decision with a second decision actually giving teeth to the ruling. And so New York's courts have basically not done anything to address the issue. In Pennsylvania for a long time, even before the 1970s, Pennsylvania courts would require local governments that were in the path of urban development to accommodate a mix of land uses, regardless of whether they accommodated deed-restricted below market-rate housing, they still had to accommodate a mix of land uses. It couldn't all be, for example, detached single-family housing, and that that strain of judicial doctrine in Pennsylvania continued throughout the 1970s and into the 1980s and beyond, with some twists and turns. So that's sort of the breakdown, right? You've got New Jersey, Mount Laurel, particularly after the Mount Laurel II decision 1983 gets when the law gets in teeth, New York, nothing. And Pennsylvania, you've got builders remedies for developers of multifamily housing, but that multifamily housing does not need to include deed-restricted below market rate units.

Shane Phillips 37:44
Okay, and so for this paper, maybe that's helps explain why, you know, you're studying what you did in this paper, which was the production of apartments and townhomes. So not looking at below-market or anything like that, just apartments and townhomes and those were used because these housing types are a fairly good proxy for household income, people who live in apartments and townhomes tend to have lower incomes than the residents of detached homes. So between these three areas, what differences did you find or I guess, four areas, what did you find between New Jersey jurisdictions and those in New York and Philadelphia?

Nicholas Marantz 38:22
Yeah, so in New Jersey, we find that we saw a 27% increase in townhome stock relative to New York's, we're talking about northern New Jersey versus New York, and a 7% increase in apartment units in northern New Jersey relative to the New York State municipalities right across the border. We don't find any statistically significant differences between Southern New Jersey municipalities and Pennsylvania, when we're looking at townhome and apartment production in the years following Mount Laurel II versus the years before Mount Laurel II.

Paavo Monkkonen 39:07
Yeah, can I just jump in and compliment the research design of both of these papers, I think kind of budding scholars should check them out. I think they do a really good job of using this metropolitan areas that span two states to kind of assess what we can tell about the differences in housing development in those two states that have these different systems. And they're kind of very upfront about the non-experimental nature of this and the fact that you know, these are exogenous to the metropolitan activity, but like they're in two states, so they're, they're facing different challenges that you can't control for. I wonder whether you had thoughts on kind of the New Jersey half of Philadelphia or New Jersey section of New York and other ways they differ that wouldn't be attributable to these housing, the state-level housing laws, how much did you worry about that when you were doing this projects?

Nicholas Marantz 39:58
Oh, quite a bit. We have some dependencies dealing with some of the potential differences. And I mean, I think you're right Paavo that, in general, you know, we can't really say with certainty what it is about any given state that is driving variation. There are myriad differences in policy in particular, one of the things that this cross border comparison does pretty well, I think, is this many of the socio economic forces driving, the regional socio economic forces are the same, right? Because these jurisdictions are all in the same region. But of course, there are concerns about selection, self selection, right that people, maybe people live in New York State, because they like some mix of the policy is in New York State relative to the mix of policies in New Jersey right across the border. And so that may sort of have impacts on housing development, that are not necessarily attributable to, for example, the Mount Laurel decision. And so that's the kind of thing that that we worry about, and that we really can't control for. There are other things like tax rates that we can control for, and that we do try to control for in the dependencies but yes.

Paavo Monkkonen 41:26
Yeah, and in general, both papers take it's somewhat similar strategy in terms of just comparing the differences between the two states within these metropolitan areas. And that's kind of the most effective figures that I saw, were figures or tables just kind of the raw data kind of how is townhome development different in these two places. But then you get into a regression framework, where you look at, is it tract or municipal level variation, and different ways to worry about it at a smaller geography, and control for different things. So I think is an effective approach

Echo Zheng 42:00
That brings back a lot of memory, Nick. The New Jersey paper is the very first research project on state planning that I've worked on. Yeah, that kind of just opened the door for me.

Paavo Monkkonen 42:16
Cutting your teeth on all the hard data work.

Shane Phillips 42:19
I mean, something that I sort of took away from this was, you know, we've been debating here in California recently, you know, should we have some kind of like constitutional amendment or law that says, there is a, like a constitutional right to housing. And I think, you know, just in general terms, that sounds good, but it really shows, these cases really show that like, the details matter a lot, and just saying that there's this right to housing, you know, looking at it from the perspective of New Jersey versus in New York, like, it can mean very different things. And in practice, the policies you assigned to this, the obligations you assign, make all the difference in some respects. Yeah, absolutely. That was a big takeaway for me.

Paavo Monkkonen 43:03
Well, and I mean, even with this paper, where it's like, is the judiciary doing it and giving it to the legislature, but even when the legislature does it, like here, they're giving it to the bureaucracy. And so I mean, that's, you know, something that has been in the news of late right is kind of there's all these new laws governing California's housing element process and the bureaucracies maybe not enforcing them.

Shane Phillips 43:24
Yeah, so let's, let's move on to California, and this will be a chance for for Echo to comment a little more, because she was the lead author on this one. So this is a report on, it's titled Accessibility, Affordability and Allocation of Housing Targets to California's Local Governments. Both of you are authors, as well as Jay Han Kim, and Doug Houston, or rather Houston. And so here in California, we have this system where the state forecasts population growth every eight years, the housing needed to accommodate that growth gets divvied up between cities and unincorporated areas by regional governments, as part of the Regional Housing Needs assessment or RHNA, then every local government in the state has to create something called a housing element that lays out where all of that housing will go. For the whole, we're really seeing the lack of simplicity in our system already.

Echo Zheng 44:21
Just hearing this introduction

Shane Phillips 44:23
Yeah, the housing element has to identify specific sites that are viable for development or redevelopment. And so we've already kind of covered this a bit, so maybe just focusing on the differences here but what what does this if anything, share with the northeastern approach?

Echo Zheng 44:42
Yeah, I mean, one big similarity here is that you have housing obligations coming from the state to local governments, even though the housing obligations are expressed in different forms - in California it's like a planning target and then in Massachusetts, it's like a percentage of the housing stock that needs to be affordable units. And the other similarity, if it counts is that there are some sort of enforcement mechanisms in both types of state interventions that compel local governments to accommodate these housing obligations. So in California, at least now, there are consequences of not producing a compliant housing plan. And in Massachusetts and other Northeastern states, we've talked about it a lot. You have builders' remedy, and this accused system.

Shane Phillips 45:45
And then in terms of outcomes, since this is what we're really concerned with, where do we stand on this over, nd maybe we should, you know, focus on before the current cycle, before all of the reforms that have gone into place, what has the RHNA process, the housing element process, in California produced?

Echo Zheng 46:04
Um, well, actually, before it gets an outcome, let me just point out another difference. So in California, the housing targets include the low market rate housing, and also market rate units whereas in the north eastern states, the housing targets are mainly below market rate units. I think that's another difference scholars tend to point out a lot. And then in terms of outcomes, yeah, you're right, we don't really have data to assess the effectiveness of the current system. And hopefully, we have, I think HCD is doing some work in the right direction in terms of collecting these different types of data. But looking at previous planning periods, I think the consensus is that the majority of the housing units that were built in previous planning periods did not occur in the sites that are included as suitable or available in their housing plan.

Nicholas Marantz 47:12
Shout out to Paavo and Chris Elmendorf....

Paavo Monkkonen 47:17
Celine and Syd really, I mean, Chris came up with the idea. Yeah, and I was gonna say we don't have a nice metropolitan area that's that sprawls into Arizona or Nevada, right. So we don't have this control....

Shane Phillips 47:29
Lake Tahoe what are you talking about?

Paavo Monkkonen 47:34
Yeah, no, I was actually talking to Chris Elmendorf yesterday about this in terms of rezonings as one of the tangible outcomes that we could expect from the housing element process, right? So if cities are forced to accommodate some, some housing in their plan, and they don't have enough space, they need to rezone some land for more housing. And he had actually already asked HCD for data, they collected data on rezonings from the fifth cycle. And so they a total across the state of 35,000 units - space for 35,000 units were created but through rezonings in the fifth cycle, right. But the total housing need in the fifth cycle was a million units. So yeah, I mean, I don't think that's like a huge, huge impact if we generated 35,000.

Shane Phillips 48:24
Just to make sure everyone's on the same page, HCD is the Housing and Community Development departments, the state's housing department, and they are kind of charged with overseeing and enforcing these housing elements as they're developed end, and after they've been implemented.

Paavo Monkkonen 48:39
Should we turn to the report?

Shane Phillips 48:40
Yeah, yeah, I did want to just add one more thing, though, which is that not only are, you know, these plans, not good at identifying places where development actually occurs. But they don't seem to be very effective at encouraging adequate development, with most cities, many cities having, I think, by all of our standards anyway, goals that targets that were too low - production targets that were not sufficient to meet the growing demand. And still failing to meet those targets by a very wide margin in most places, with the exception of Beverly Hills, got to give them credit. They did meet their target of three housing units in eight years.

Paavo Monkkonen 49:22
They blew past their target. Resounding success.

Echo Zheng 49:25
Well good luck on the next cycle. Yes, keep up the good work.

Shane Phillips 49:30
I think their their target, because it was obviously politically manipulated and way too low last time. I'm pretty sure it's about 1000 times higher now, which is a little more appropriate. So, Paavo, did you want to ask this question about the different approaches?

Paavo Monkkonen 49:46
Sure, yeah, so let's turn to the report. I think it's a great analysis and a really kind of important big picture analysis. I'm really glad you did it. It has two parts. So the first part you compare the allocation method In Southern California, so can maybe you summarize the way that the regional government allocated housing, and the two approaches you compare it to?

Echo Zheng 50:08
Yeah, so in the report, I'm looking at the approach generated by SCAG

Shane Phillips 50:15
We're getting into dangerous acronym territory

Echo Zheng 50:17
Southern California Association of Governments, okay. So generally speaking, this allocation approach incorporates so many different criteria or indicators, such as accessibility of jobs, accessibility of transit, projected population growth, which is generated by a different government agency, and many other indicators that I can't memorize them all. But these indicators are served as a proxy for demand. So basically, they have a formula plug in these indicators, and then they come up with measures for housing demand in different local municipalities. And based on these existing and projected housing needs, they allocate the housing targets to each local government in the SCAG region in Southern California. So this is the approach they took probably do you have a question?

Paavo Monkkonen 51:25
No, yeah. So then in your work, you compare it to other potential just to see how effective they would have been?

Echo Zheng 51:32
Yeah, so we just come up with two other much simpler approach. One of them, we call it the 20% rule, which pretty much resembles Massachusetts, 10% versus hold. So we're seeing the target will be set as 20% of the housing stock, as of 2010. And then the other approach, we slightly modified this 20% rule, we have this indicators of job accessibility. And we rank the municipalities based on their job accessibilities, and then, basically, for the top half of the municipalities in this ranking, we set the housing targets as 25% of local housing stock as of 2010. And for the other half, we set a slightly lower housing targets, which is, I believe, 15% of local housing stock as of 2010. So we have these three different approaches, and look at how the allocation outcomes under each allocation method correlate with different local characteristics that we're interested, such as access to jobs, access to transit, and access to high-opportunity areas.

Paavo Monkkonen 52:55
Yeah, so this, how fair is the fair share allotment that cities are getting the question, and so what did you find, was the complicated method, superior method?

Shane Phillips 53:05
How could it not be?

Echo Zheng 53:08
Well, surprisingly, it's not the most superior method, the complicated one. So what we found is that under the more complicated multicriteria allocation scenario, the outcomes are not really associated with transit accessibility anymore in the regression context. So that's after we control for several other local characteristics. So even though transit accessibility is one indicator used in this allocation process, but when we look at the allocation outcome, it's not really strongly correlated with transit assessable. That's one thing. And the other issue we found is that a group, a set of high- income cities in the region, actually get much lower average allocation outcomes compared to lower-income municipalities. And that's potentially problematic, because income is an important proxy for socio-economic opportunity.

Shane Phillips 54:19
And just to make sure I'm understanding this correctly, you're looking at the allocations that were actually made for the first one. And so in the case of SCAG, if I'm understanding like timing correctly, this is after we had this whole local fight about, you know, there was the initial plan where a lot more housing was allocated inland and San Bernardino County, and Riverside County, and then kind of surprisingly, a lot of local politicians here stood up and said, "no, we should actually have more housing and Los Angeles and Orange County and places like that". So this outcome where you're finding it was not really associated with transit accessibility and things like that, that was after we moved a lot of the housing inland or toward the coasts. So even after that outcomes are still not good.

Echo Zheng 55:11
Yeah, that's what the press call the "coastal plan", and that was released in March 2020. And we know there was an appeal process that came after even though there wasn't that much change made to the initial allocations.

Paavo Monkkonen 55:29
Yeah, actually so I had a question about that, so you did use the final plan, because, you know, in that plan, my big problem with it was 40% of the need was still allocated based on like, the way they had done things in the past at SCAG, which was this local inputs process, which was like a black box that basically asked cities, how much they intended to grow, and then use that as their housing target. So I think it would be interesting to look at just the job because the other 60% was assigned based on jobs, accessibility, and transit accessibility. And so did you break that apart at all?

Echo Zheng 56:07
Not in this report but for the other allocation scenario that I constructed, the third one that I mentioned which consider job accessibility in the allocation process, that one, we found positive calorie correlations between the allocation outcomes and job assessability. And we don't see that municipalities at different income levels are receiving significantly different allocation outcomes. So for that, I think it's an improvement compared to the multicriteria allocation outcomes, and it's also much more administratively simpler.

Paavo Monkkonen 56:51
Yeah, yeah. Yeah, and I wonder whether either of you have perspectives on the other regional approaches to this problem. I mean, one feature of the California system is that regional governments get to invent their own methodology for allocating housing within their region. And so every, you know, San Diego, Sacramento, Bay area are taking different approaches, have you looked into those and you have any thoughts?

Echo Zheng 57:15
I briefly looked into those. I know the Bay Area is still in the process of finalizing their allocation but correct me if I'm wrong. I've looked at San Diego, and also other slightly smaller regions that did the allocation before SCAG did it, because different regions also have different timelines. And some of the regions don't really need to do it right now. So a lot of other regions also use this multicriteria method but is not as complicated as the one that SCAG is using for this cycle. But this multi criteria formula, it's like a norm adopted by regional government.

Nicholas Marantz 58:06
And I think sort of more broadly, it's easy to understand the appeal of these multicriteria methods right there, the world is really complicated. And we want to take into account all of these different considerations in policymaking processes. But I think one thing that that our work highlights is that there are trade offs between complexity and simplicity, obviously, but one thing that can get lost is by taking into account all of these different considerations, you may end up with less housing in general, and in particular, less deed-restricted below market rate housing, than you would with a simpler approach that maybe doesn't take into account the infinite complexity.

Paavo Monkkonen 58:53
So like a one size fits all?

Nicholas Marantz 58:57
Yeah, well, let's say more like, you go into the store and you buy the pair of pants that fits you more closely rather than going to a tailor to get.

Shane Phillips 59:11
I do think, I mean to give credit to the RHNA housing element process here in California, I do think you could say one drawback of the just we're gonna shoot for 10% or whatever percent of housing to be income-restricted, is that doesn't really respond to future demand more broadly. Because you could just say, well, we're gonna build nothing except income-restricted housing, until we get to that threshold. But that's not actually the only housing that's needed. And you know, there's demand for these places to grow, and so I could go down the list of reasons California's approach is bad and has all these problems. But I do think that seems like one strength. You know, I guess this just gets back to the fact that ours is very planning based and there is a role for planning and all of this and maybe it shouldn't just be looking at, you know, percentages at the end of the day, right?

Nicholas Marantz 1:00:05
Yeah. Or it shouldn't be 10% of your housing has to be deed restricted, it should be maybe if you know, up to 20% of your housing stock; if you're not accommodating up to 20% of your housing, an additional 20% of housing stock as compared to 10 years ago, then there's some kind of access to a builder's remedy. I mean, there are a lot I think there are a lot of different ways to structure a simpler rule. I certainly don't think that the state affordable housing appeals system is by any stretch of the imagination, the best way to do it. But I do think it sort of points to some of the benefits of simpler approaches

Echo Zheng 1:00:50
For a planning approach to work well, it really depends on whether all local governments are genuinely wanting to plan for more housing. Otherwise, you just have more ways to be creative to do what you want to achieve your agenda.

Paavo Monkkonen 1:01:09
Yeah, I mean, that brings up a lot of issues also with kind of historical legacy of where transit is located, and kind of where the job centers are. I think that maybe it's something that people are still interested in this topic. The Paris example is also quite interesting. They have a 20%, below market rate type approach to municipalities in Paris. But it's also coupled with funding. I mean, that's one thing that the California surprises reveals is we definitely don't have enough money to build all the housing need that we've allocated for, in terms of low income units across the state. But there's a good paper by Yonah Freemark that we can put in the show notes about the Paris approach, because I want to turn now to the second half of the report, where you analyze implementation, which is I think, an interesting approach. And so you look at both the need and the enforcement considering three types of enforcement: planning mandates, zoning reform mandates, and zoning overrides. So maybe first, you can tell us about those three approaches, and then kind of how you illustrate the differences with two case studies.

Echo Zheng 1:02:12
Yeah, so planning mandates is a mandate that requires local governments to plan for housing like in California; they are required to generate a housing plan to illustrate how they're gonna accommodate future housing growth. And zoning reform mandates is states like California and also Minnesota, they require that local zoning regulations needs to be consistent with their housing plans. So that's like one step ahead. So in addition, to generate these local housing plans, you need to bring your local land use and zoning policies in consistent with your plans. And then for zoning overrides, is something that we've talked about, like in Massachusetts, developers of qualifying projects can bypass local zoning regulations and move forward their projects.

Paavo Monkkonen 1:03:12
So like an appeal system, and so with the zoning reform mandates, examples would be like, would you consider the ADU legislation as zoning reform mandate or is this more like SB 50, overriding zoning near transit approach?

Echo Zheng 1:03:26
Um, I would say in California, the example is that when you update your local housing plans, and you realize you need additional zoning capacity to accommodate your housing targets, then you're required to rezone.

Paavo Monkkonen 1:03:46
And then so you compare Fullerton and the City of orange, both located in Orange County, interesting places, and kind of maybe tell me about the context of the two cities and what you found in terms of the three approaches there?

Echo Zheng 1:03:59
Yeah, these two cities just really stood out when I look at their RHNA allocations, which are very different, but these two cities are socially economically very similar to each other. They have similar population size, similar level of median household income, and they both have commuter rail. And when they look at the numbers, they have similar level of job accessibility. And my family lives in Anaheim so I know they are really close to each other. So when I see that their RHNA numbers are drastically different, it just caught my attention. So with all these similar similarities, Fullerton received a RHNA allocation of over 13,000 and the City of Orange received an allocation of under 4000, and that comes from multicriteria

Paavo Monkkonen 1:05:01
Right, yeah, I mean, I, I think there must have been a lot of this local input affecting those numbers. I also noticed in your descriptive statistics Orange is a lot wider than Fullerton and slightly richer so...

Echo Zheng 1:05:15
Maybe slightly wider.

Nicholas Marantz 1:05:17
I bet but yeah, I believe that the reduction was due to the putative equity adjustment so SCAG

Echo Zheng 1:05:26
Yeah, so what happened is that the City of Orange have slightly more than 50% of the population that lives in these areas that are considered as low resource, high poverty, and segregated. SoSCAG applied these equity adjustments, and significantly reduce the allocation targets for the City of orange?

Paavo Monkkonen 1:05:54
Yep, interesting.

Nicholas Marantz 1:05:55
But I think it again shows how these efforts to tailor policy even to address equity concerns can potentially not function the way you want, right? If a city is very segregated, then some areas are going to show up as as higher segregation, that's gonna potentially make the equity adjustment resulting in lower units almost going against...

Paavo Monkkonen 1:06:23
Right, and when the kind of subunits of the city, the subunits of the allocation of the cities are very diverse in terms of their composition, if they were all homogenous, then it would be easy to allocate. I mean, this is something that's come up with the city of LA, which was like very pro, "sure, we can take a lot of housing need, we'll take half of the region's housing need, but then they just put it all downtown or kind of avoid certain neighborhoods. So bigger cities, and kind of more segregated cities are more easily able to accommodate this need without affecting their rich constituents. So then what did you find in terms of the three implementation approaches in these two places?

Echo Zheng 1:07:00
So in the analysis, I actually just look at two implementation approaches. The first one, I call it, "housing plan standards" so this one assumes that developers can just build on areas that are designated for multifamily use, and the appropriate density. So I basically looked at what current plans in these two cities, what sites are designated for multifamily use. And then in the scenario, I have this high density scenario which developers can build at 25 units per acre, and I have this low density scenarios, which developers can fill 15 units per acre. And there are different thresholds of development probability. So these are all just hypothetical numbers to get an idea how many units could potentially be built on the sites that are designated for multifamily use in current general plans. So this is one, the first implementation scenario. For the second implementation scenario, I looked at something called 'targeted zoning override' so basically, we have areas that are defined as near jobs and transit. And then in these areas, we look at parcels or sites that are currently not designated for multifamily use, and we assume that developers can override the zoning designations in these non-multifamily used parcels and built their project. And based on that assumption, we estimate the development potential in these areas. So what we get is that, if we go by the general plan standards for implementation, the development potential will be much lower than the development potential estimated for targeted zoning override implementation scenario, which is probably to be expected. And in the case of Fullerton with a RHNA number of over 13,000, the city needs to substantially rezone to higher density in order to meet this RHNA number. It will be slightly easier in the case of the city of orange, but still, if we only go by this general plan standards, they can only meet, the City of Orange can only meet its obligation when the development probability is high.

Paavo Monkkonen 1:09:52
Yeah, that's really interesting. So this this idea of if rezoning doesn't happen, there's no impact and then kind of where does the rezoning happen. And I guess the kind of the virtue of the of the current process is that the city's, there is local control about where rezoning happens versus kind of a top-down, you know, forced rezonings near transit or something. But, you know, if they don't do the rezoning then there will be no impact.

Echo Zheng 1:10:20
Yeah, if they don't do the rezoning then what?

Shane Phillips 1:10:25
Right, that's what we're about to find out in a lot of those cities. Prepare, stay tuned for the next two years. Well, I think we can we've completed our Odyssey here from the northeast back. Is there anything we missed, there's so much here, is there any kind of summing up thoughts either of you have on all of this work, and how it all fits together?

Nicholas Marantz 1:10:52
I mean, I think just to circle back to what I said at the beginning, there are really sort of two ways of thinking about state intervention broadly speaking. I think there's intervention on the planning side and intervention on the building side, and they don't necessarily need to be paired, right? You could allow for more building without requiring local governments to do any more planning. That is, in fact, what we see in Massachusetts; that's an approach that hasn't really been much considered in California. And in fact, I think, in many Western states, and so I think that dichotomy helps to sort of frame these these much more complicated policy debates in thinking about sort of how we might want to facilitate development of housing sufficient to ensure or at least improve affordability for many people.

Shane Phillips 1:11:55
I know that California is not the only place that debates local control, it's something that's being talked about and debated everywhere. But it does seem like our approach is sort of designed to retain it as much as possible, even when the state intervenes. So it's not just saying, you know, developers can build whatever they want. If you're not meeting these targets, it's saying, you have to build a lot of housing, a lot of it has to be at these affordability levels, but we're still going to leave it in your hands to determine what that looks like. And so again, I guess we'll see how that turns out. But I think that's that's an important distinction there.

Echo Zheng 1:12:31
Yeah, but I think that's also where the conundrum in California kicks in. Because you, you have this system, designed to be retained as much as local control or flexibility as possible. But then you also have these different layers of requirements and rules, seeing that how you're going to present your site inventory, how you're going to work, how you're going to rezone your properties, when this needs to be done. And if all of these are not done, you're gonna have these consequences. Like you have all these requirements on the one hand, and then on the other hand, you're saying like, you can still plan for your own community. And in my interviews with local planners and council members, I really feel like they are scratching their head in terms of how they're going to get this done. And to me, this is just like a very, I don't know how this conflict can be resolved in the system but it's really intriguing

Shane Phillips 1:13:37
Fodder for a future paper.

Paavo Monkkonen 1:13:40
Yeah, it's hard not to get depressed. I wish SB 35 was more like 40B in terms of, you know, because SB 35 has the punishment, you know, the project still need to be zoning compliant. I think if they didn't have to be zoning compliant, then there would be a much more effective stick.

Nicholas Marantz 1:13:58
Yeah, to me, SB 35 really sort of sums up one of the major problems with housing in California, which is the SB 35 is a big deal because it compels municipalities to approve projects that already comply with the zoning

Shane Phillips 1:14:19
Yeah, please just follow the law, that's all we ask. Okay, well, Echo and Nick, thank you so much for joining today.

Paavo Monkkonen 1:14:27
Yeah, thanks so much, and thanks for the great research. We'll link to everything and I recommend people check it out.

Echo Zheng 1:14:32
Thank you.

Shane Phillips 1:14:37
You can learn more about Dr. Marantz's, and Dr. Zheng's research and find our show notes and a transcript of the interview at our website lewis.ucla.edu. The UCLA Lewis center is on Facebook and Twitter. I'm on Twitter @ShanedPhillips, and you can find Paavo there at @elpaavo. Thanks for listening to the UCLA housing voice podcast and thanks for telling your friends, family, collleagues, students and passers by about us and for stealing their phones and subscribing them to the show without their knowledge, whatever it takes. See you next time.

Transcribed by https://otter.ai

About the Guest Speaker(s)

Huixin (Echo) Zheng

Huixin (Echo) Zheng is a postdoctoral researcher at the UCI School of Social Ecology. Her project is titled "Evaluating the Potential for Housing Development in Transportation-Efficient and Healthy, High-Opportunity Areas in California"

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Nicholas Marantz

Nicholas Marantz is an associate professor of urban planning and public policy at UCI. His research and teaching focus on the impacts of law, politics, and planning on housing affordability and access to various kinds of resources and opportunities.

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