Could Threats to Washington's 'Year of Housing' Be Emerging?
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Could Threats to Washington's 'Year of Housing' Be Emerging?
A legal decision in Minneapolis & a new case in California take aim at housing elements and infill mandates.
Overview
A recent court decision struck down Minneapolis’ Vision 2050, a progressive set of policies adopted in 2018 that was highlighted as the first major metro to end to single family zoning. More recently one city in California is arguing that the recent SCOTUS decision in Students for Fair Admission v. Harvard College (Havard) should eliminate the city’s duty to provide for housing.
In this article, I take a deeper look at these events and analyze where this could signal trouble ahead for Washington State’s “Year of Housing” legislation.
At a Glance - The Year of Housing
It was an exciting year for pro-housing advocates in Washington State. The 2023 legislative session in Washington State yieled unprecedented action on housing policies, earning the title of “The Year of Housing” which we more thoroughly discuss here.
Some of the pro-housing/infill legislation approved to address the state’s 100,000+ shortfall in housing units requires cities to:
allow two accessory dwelling units on any lot in a residential zone
orallow a minimum of two to four units each lot (depending on the size of the city) and even more units if the project is located near transit and/or if the developer provides affordable housing.
And there was even legislation that limited the amount of new parking cities could require for infill housing.
If these infill policy changes sound familiar, it’s probably because they are very similar to ones adopted in Minneapolis back in 2018.
Minneapolis Plan Overturned, Single Family Zoning Reinstated
Flashback to December 2018 when the Minneapolis City Council adopted the Minneapolis 2040 Comprehensive Plan (MV2040) which Slate Magazine and others reported made Minneapolis “the first major U.S. city to end single-family home zoning.”
At the time, MV2040 opened the door for three-family homes (aka triplexes) in all the city’s residential neighborhoods (including the ‘wealthy’ ones), abolished parking minimums for all new construction, and allowed the development of higher density buildings along transit corridors. Sounds a lot like Washington’s missing middle bill right?
MV2040, while being a landmark policy lauded by pro-housing, affordable housing and diversity groups, met stiff resistence from two birding
groups and a non-profit organization called Smart Growth Minneapolis - a dubius name for an anti-density environmental justice organization. Smart Growth Minneapolis’ legal challenges, which they began prior to adoption of MV2040 in an effort to stop it, are based on a concern that the policies intensify the use of roughly half of Minneapolis’ land supply and ultimately harm water resources, air quality, wildlife habitat and ecosystems. Ultimately, they indicate on their website there can be no social justice if there is not first environmental justice.Smart Growth Minneapolis’ legal challenges were successful as a District Court Judge granted injunctive relief to the petitioners in June of 2022, ruling that MV2040 did not comply with the Minnesota Environmental Rights Act (MERA) and enjoining the city from implementing MV2040.
The City of Minneapolis appealed that order and the Minnesota Court of Appeals affirmed in part and reversed in part the District Court ruling, remanding the matter back to the District Court on December 27, 2022. The part of the District Court’s order that was reversed and remanded had to do with the District Court’s granting of injunctive relief enjoining the city from ennacting any part of Vision 2040 and requiring it to revert back to Vision 2030 (the prior plan).
The city then filed a petition with the Minnesota Supreme Court seeking review of the Court of Appeals decision. The Minnesota Supreme Court denied the petition on April 18, 2023.
Now in a 46-page ruling
issued on September 5th, 2023 a Hennepin County District Court Judge granted Smart Growth Minneapolis a temporary injunction and enjoined the city from implementing MV2040 unless and until the City completes an appropriate and properly conducted Environmental Impact Statement (EIS) or an Alternative Urban Area Review (AUAR). Further, it requires the city, within 60 days, to restore and reinstate the residential development plan elements and land use ordinances in effect prior to December 4, 2018. Finally, the ruling set a December 31, 2028 date for expiration of the temporary injunction.
A California City Challenges Housing Requirements
The City of La Cañada Flintridge, located in Los Angeles County, has a population of about 19,700 with a median income of +/- $190,000 and a median home price of +/- 1.6 million. What they don’t have is any recent multifamily housing projects and they’d like to keep it that way.
In a July 11, 2023 decision, a Superior Court judge for Los Angeles County ruled in favor of Californians for Homeowners (a group organized by the California Realtors Association) finding that the city failed to timely rezone sites to accommodate the city's regional housing needs allocation (RHNA) and therefore the city's housing element is not substantially compliant with state law. The court further rebuked the city's argument that compliance with the deadlines in state housing element law is not mandatory.
This decision is significant because on July 21, 2023, a developer (600 Foothill Owner, LP) filed suit against the city because the city denied a project in which the developer invoked the “Builders Remedy”
which in some cases allows housing projects to be approved even if they don’t comply with the city’s zoning and housing elements provided the projects 20% low income or 100% moderate income housing.The City contends that the project has failed to be appropriately reviewed under California Environmental Quality Act (CEQA), given no CEQA was completed. Further, in a response filed by the city on August 23 2023, the city argued that under the recent Supreme Court decision in Students for Fair Admission v. Havard College
it does not have a duty to substantially comply with the Housing Element Law because the Housing Element Law is at it’s core an affirmative action requirement. Thus, they argue that under Havard, the Housing Element Law’s broad policy goals of providing housing for certain classes of people and remedy historic patterns of segregation don’t pass the strict scrutiny test because the preferences for housing aren’t “sufficiently connected” to their alledged justification.
So, How Could This Impact The Year of Housing?
In regards to the claim by the City of La Canada Flintridge, it’s too soon to tell.
However, the La Canada Flintridge case and their arguments under Havard should be watched very closely by housing advocates in Washington given the fact cities and counties are presently completing their periodic comprehensive plan updates and are required to prepare Housing Needs Assessments that will necessitate updating each jurisdiction’s Housing Element of their comprehenisve plan. This work is required to comply with HB 1220 (passed in 2021) in which the Legislature ennacted changes to Goal 3 of the Growth Management Act (GMA) directing the goal be changed from “encouraging” housing for all economic segements to requiring jurisdictions actually “plan” for and “accommodate” housing for all economic segments.
The fact jurisdictions must now actually accommodate housing for all economic segments creates a new, specific duty that jurisdictions must perform. And some cities are very uncomfortable with their forthcoming population targets let alone now needing to provide for certain housing they may or may not have tried to avoid allowing historically. As reported in the Valley Record back in June of this year, Snoqualmie is one of those cities who has expressed concern over both their population allocation, as well as the “affordability requirements” because they are “unique” compared to others.
It’s worth noting that HB 1220 also established new requirements for the Housing Elements in comprehensive plans, which created guidlines by which jurisdictions must identify and implement policies and regulations that “address and begin to undo racially disparate impacts, displacement, and exclusion in housing. . .”
As for “environmental” challenges, specifically challenges to whether these new policies that increase the intensity of infill development, will be challenged it’s unclear how those challenges could more forward.
As I previously covered in my “The Year of Housing” summary, Washington’s Legislature wanted to ensure jurisdictions ennacted the new missing middle policies (HB 1110) quickly and limit the potential that legal challenges under the State Environmental Policy Act (SEPA) might slow down implementation. Thus, the Legislature added three key provisions to the bill.
First, cities are required to adopt the new housing policies within six months of their next periodic comprehensive plan update. Doing this avoids comprehensive plans being appealed because of the minimum density standards and vice-versa. Second, the Legislature amended the SEPA statutes in RCW 43.21C to specifically exempt ennactment of these new housing allowances from both administrative and judicial appeals under SEPA. This means that you can’t challenge the local adoption of the new requirements based on the lack of environmental review. Third, just in case there was some challenge of a development regulation or comprehensive plan tied to the requirements for minimum residential densities, the Legislature took the extra step of modifying RCW 36.70A.280, which covers those matters which can be petitioned before the Growth Management Hearings Board, to establish a clearly erroneous standard of review for challenges to minimum densities.
By adding all these extra provisions to HB 1110 (aka the missing middle housing bill), the Legislature effectively limited the potential for traditional legal challenges - at least as they relate to adoption of the requirements by ordinance at the local level. While the Legislature did not go so far as to prevent legal challenges of projects which might be proposed under the new standards, it should be noted by pro-housing cities and housing advocates that the Legislature seperately modified the SEPA categorical exemptions for infill and housing projects.
With SB 5412 (2023) the Legislature allows cities and counties to exempt from SEPA all projects developing one or more residential housing units within the incorporated urban growth area (UGA) or missing middle housing within the unincorporated urban growth area.
In sum, while there may be some legal challenges that threaten Washington’s efforts to create needed housing, the Legislature has gone to great efforts to attempt to limit appeals of soon-to-be adopted missing middle zoning ordinances and appeals of the infill and housing projects proposed as a result.
Disclaimer
I am a land use consultant and not a land use attorney. As such my analysis and opinion contained herein should not be construed as legal advice.
HB 1337 - Aa act relating to expanding housing options by easing barriers to the construction and use of accessory dwelling units
HB 1110 - An act relating to creating more homes for Washington by increasing middle housing in areas traditionally dedicated to single family detached housing
The Legislature’s requirements for these minimum residential densities was codified in RCW 36.70A.635.
Grabar, H. (2018, December 7). Minneapolis Confronts Its History of Housing Segregation. Slate.com. https://slate.com/business/2018/12/minneapolis-single-family-zoning-housing-racism.html
Audubon Chapter of Minneapolis and the 'Minneapolis Citizens for the Protection of Migratory Birds
An ‘environmental justice’ organization in a coalition with the Audubon Chapter of Minneapolis, the Minneapolis Citizens for the Protection of Migratory Birds, and the Great River Coalition.
Link to Smart Growth Order on Remand
Elmendorf, C. S. (2022). A Primer on California’s “Builder’s Remedy” for Housing-Element Noncompliance [Law Review]. Link
Students for Fair Admission v. Harvard College (June 29, 2023) __U.S.__, 143 S.Ct. 2141
Wilson, C. (2023, June 20). Snoqualmie Seeks Compromise on Housing Goals. Valley Record. https://www.valleyrecord.com/news/snoqualmie-seeks-compromise-on-housing-goals/