By Navneet Grewal (Click here to view the entire PDF)
“As Rents Outrun Pay, California Families Live on a Knife’s Edge.”1 “California Home to 91 Of America’s 100 Most Expensive Zip Codes.”2 “How do we solve our housing crisis in California?”3 The headlines have become too many to count. As the state’s own Supreme Court declared several years ago, California’s housing crisis has “reached what might be described as epic proportions.”4 But what is often left unsaid is that the housing crisis is and has been a catastrophe for communities of color.
Since 2000, California has been a majority of people of color state. By 2040, about three-quarters of the population will be people of color.5 But while the entire state is facing high housing cost burdens,6 the situation worsens when viewed by race. For example, of households who are Black alone, 59% are rent-burdened, in comparison to 48% of households who are White alone.7 Studies of homelessness reveal the same disparities. The City of Los Angeles found that “[i]n 2017, Black people represented only 9% of the general population in Los Angeles County yet comprised 40% of the population experiencing homelessness.”8 These disparities are no accident. Like the rest of the United States, California’s history includes laws that led to the displacement and genocide of indigenous communities, segregation, land laws prohibiting homeownership by immigrants, and other policies that have led to racialized, place-based poverty. So to ensure that the solutions to the housing crisis do not build the racialized access to stable housing, tenants’ rights and civil rights groups have sought to ensure that new state laws prioritize race equity.
Land Use & Planning
As civil rights practitioners know intimately, our segregated and unequal housing patterns most often result from exclusionary planning and zoning practices. Anti-poverty advocates have sponsored and supported the following bills which were signed into law:
AB 686 Affirmatively Furthering Fair Housing
With HUD Secretary Ben Carson having derided the federal duty to affirmatively further fair housing as “social engineering,”9 California knew that it would have to act to protect the AFFH gains made during the Obama Administration. As a result, in 2018, the Legislature passed AB 686, creating an obligation for every public agency in the state to administer their programs and activities in a manner that affirmatively furthers fair housing. The California law makes clear that the duty to affirmatively further fair housing includes opening up access to high opportunity neighborhoods, preventing displacement in gentrifying neighborhoods, and transforming historically disinvested neighborhoods. The law specifically requires that every local jurisdiction engage in the AFFH analysis as part of the state-mandated housing element, which is a legally enforceable blueprint for housing policy in each city and county. Advocates have now turned to the hard task of implementation and are working with the state Department of Housing and Community Development to ensure that AB 686 guidelines are meaningful and effective.
AB 1771 Regional Housing Needs Allocation Process
The principles articulated in the New Jersey Supreme Court’s Mt. Laurel decision—that municipalities’ have an “affirmative obligation” to meet their “fair share” of the regional need for low- and moderate-income housing10 served as a blueprint for states like California. We have, for decades, required that all localities “facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments of the community.”11 To do this, the state and local councils of governments engage in a process by which each region is allocated a certain number of units, separated by income category, for which it must adequately zone sites for development. But that process has long contained loopholes allowing for political horse-trading that resulted in exclusionary communities often having to accommodate a lower amount of housing. AB 1771 reformed the regional housing needs allocation (RHNA) process by requiring a more data-driven approach, explicitly mandating the consideration of race and equity in the allocations, and establishing greater transparency in the distribution process. Many of the state’s regions are currently undergoing the allocation process, subject to this new law. Advocates are monitoring to ensure that those regions abide by the race equity principles articulated in AB 1771.
AB 1505 Inclusionary Zoning
Long recognized as an important tool for integrated housing patterns, the state of California’s more than 170 inclusionary zoning laws were thrown into disarray when a Court of Appeal decided, in Palmer/Sixth Street Properties L.P. v. City of Los Angeles, 175 Cal.App.4th 1396 (2009), that state law prohibited local mandatory inclusionary ordinances for rental housing. Advocates quickly mobilized to restore cities’ ability to pass these ordinances, but were faced vetoes and other setbacks. Finally, in 2017, AB 1505 was signed into law, once again allowing California’s cities to require that private developers include affordable units in any new development.
As the state discusses how to accelerate the pace of housing development, communities of color see the potential for a new wave of urban renewal and the devastation it wrought on black and brown communities. Rising housing costs have already begun the resegregation of the San Francisco Bay Area.12 To combat displacement, communities are fighting for greater tenants’ rights. While many have organized and won local battles, 2019 is the first year since the beginning of the current housing crisis that tenants have succeeded in passing major legislation on the state level.
AB 1482 Keep Families Home
California enacted the country’s strongest statewide rent cap—5% plus CPI for all units covered. And more significantly, the law requires just cause for evictions once tenants have resided in their units for a year or more. This law will be crucial for preventing the displacement of tenants in gentrifying neighborhoods.
SB 329 Voucher Anti-Discrimination
For years, advocates have fought in the state legislature, in the courts, and on the local level to prohibit discrimination against people who are using voucher assistance to pay a portion of their rent. Such vouchers can provide a pathway for people using them to move to communities they choose, but rampant discrimination has prevented their effectiveness in doing so. SB 329 adds housing assistance as a protected source of income under the Fair Employment and Housing Act, meaning landlords would no longer be permitted to discriminate against tenants with Section 8 Housing Choice Vouchers, or similar assistance. This anti-discrimination law should open up more neighborhoods and housing opportunities to any voucher holders, but particularly low-income families of color.
AB 291 Immigrant Tenant Protection Act
In the wake of Donald Trump’s election and ensuring anti-immigrant rhetoric and policy, landlords across California began using threatening tactics to harass and evict Latinx and other families whom they perceived to be immigrants. AB 291 created a slew of protections for immigrant families—or people perceived to be immigrants.13 These include codifying an affirmative defense to evictions based on immigration status, prohibiting landlords from threatening to report tenants to immigration authorities and creating a new private right of action against landlords who make such a report for purposes of retaliation, intimidation, or forcing an eviction. The law also prohibited inquiries into immigration status for the purposes of any housing-related litigation.
California’s recent legislative successes are important to celebrate. But as we see our unhoused population continue to explode and our communities of color displaced to low-resourced exurbs, we have a lot of work to do. We must implement and enforce the laws that we have passed. As we continue to debate land use reforms, we must ensure that the low-income communities of color most harmed by our housing crisis are at the forefront in developing the response to it. And that response must prioritize racial equity and justice so that we do not trap future generations in the cycle of poverty that our country’s history of race- and place-based segregation, violence, and inequitable development has created.
Navneet Grewal (ngrewal@gmail. com) was Senior Housing Attorney at the Western Center On Law and Poverty at the time of writing.
1 Jill Cowan and Robert Gebeloff, “As Rents Outrun Pay, California Families Live on a Knife’s Edge,” The New York Times (Nov. 21, 2019).
2 Vivian Ho, “California Home to 91 Of America’s 100 Most Expensive Zip Codes,” The Guardian (Nov. 18, 2019).
3 Dan Dunmoyer, “Open Forum: How do we solve our housing crisis in California?” San Francisco Chronicle (May 23, 2019).
4 California Bldg. Indus. Assn. v. City of San Jose, 61 Cal. 4th 435, 441 (2015)
6 www.hcd.ca.gov/policy-research/plans-reports/docs/SHA_Final_Combined.pdf at 27
7 Id. at 28.
8 Los Angeles Homeless Services Authority, “Report And Recommendations of The Ad Hoc Committee On Black People Experiencing Homelessness,” (Dec. 2018), available at www.lahsa.org/documents?id=2823-report-and-recommendations-of-the-ad-hoc-committee-on-black-people-experiencing-homelessness
9 Ben S. Carson, “Experimenting With Failed Socialism Again,” The Washington Times (July 23, 2015) www.washingtontimes.com/news/2015/jul/23/ben-carson-obamas-housing-rules-try-to-accomplish-/
10 S. Burlington County N.A.A.C.P. et al. v. Township of Mount Laurel, 336 A.2d 713, 724, 727-28 (N.J. 1975).
11 Government Code § 65880.
12 www.urbandisplacement.org/sites/default/files/images/bay_area_re-segregation_ rising_ housing_costs_report_2019.pdf