September 10, 2015

The Daily Durning: “Sue the Suburbs!”

You can imagine how thrilled Durning was to see this:



It’s an urbanist’s dream come true: The ability to sue a bedroom community for not building its fair share of housing. And a San Francisco renters group is threatening to make it happen. In an effort that could turn the Bay Area’s housing wars on their head, the pro-development San Francisco Bay Area Renters’ Federation (SFBARF) is launching an effort called Sue the Suburbs, setting its sights on the East Bay city of Lafayette, where a newly trimmed down residential community is shaping up to be a novel kind of battleground. …

“Housing supply is a classic tragedy of the commons or collective action problem,” says Gabriel Metcalf, director of the urban planning think tank SPUR. “Every neighborhood has an incentive to say no to higher-density development because some of the impacts are felt locally. But when you aggregate that at the level of the whole Bay Area, the net effect of each neighborhood saying no is a profound crisis of affordability.” It’s a power dynamic whose logic is inescapable: Existing residents always prevail over future ones, because they get to fight an opponent who is only theoretical. …

The basis for a lawsuit comes from 1982’s Housing Accountability Act, a measure that California passed as a counterweight to municipalities’ natural NIMBY tendencies. When a proposed development includes units affordable to low- and moderate-income households (and meets zoning requirements), the law forbids a jurisdiction from denying approval, or reducing a project’s density, unless it threatens health and safety in demonstrable ways. “For the most part, it is impossible for a city to satisfy these requirements for a typical housing project,” explains Junius & Rose partner Andrew J. Junius, a land-use attorney who is advising SFBARF. “Infill housing projects are not harmful to people’s health.” …

By identifying and recruiting a new class of stakeholders, the pro-housing groups are stepping up for a fight that developers are often reluctant to pick themselves. Mike Rawson, director of the Public Interest Law Project, says that developers’ financial dependence on local governments makes them wary of suing over scuttled or downsized projects. “The suits take resources, and often nonprofit developers want to stay on the good side of local government because they almost always will need additional subsidies to make the affordable housing work,” he says.

Trauss and Hanlon hit upon the idea of suing because of how difficult it can be to persuade communities to embrace the levels of housing the Bay Area needs. “It’s difficult to see how a public campaign or mobilization in these suburban communities is going to work,” says Hanlon. “People don’t vote against their financial insterests.” Metcalf, the SPUR director, is enthusiastic about the Sue the Suburbs idea. “We need some new tools in the toolbox, because housing costs have gotten out of control, and by definition whatever we’ve been doing so far has not been enough,” he says. “From civil rights to gun rights, from free speech to gay marriage, all kinds of social movements have used legal strategies for all kinds of purposes, and it often takes years, if not decades, to bear fruit. But I think this is something that somebody needs to do.”

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  1. Not convinced that holding a threat of a lawsuit or initiation of a lawsuit against a community (if a development is at proposal, but approved stage by local authorities), is anyone’s desired tool to convince a community to have an affordable housing development in their area.

    Litigation is not the route to foster /seed harmonious affordable housing options that becomes agreeable among different stakeholders over a non-litigious negotiation process. (Lawyers from the private sector just need money to feed their practice or an interesting case in their portfolio of work.. for more future work.)

  2. I agree, Jean. However, my post was meant to be more of a comment on the Metro Vancouver Liveable Region Plan. It’s my view that not all municipalities are living up to it, and while there is monitoring by Metro, there is no enforcement. Some Metro Vancouver municipalities think they are virtual city-states. We have to accommodate growth regionally otherwise the LRP will not work. As well, I think there is too much emphasis by the media on the City of Vancouver. It’s time to examine in detail what other Metro Vancouver municipalities are doing.
    I offer this article from the great blog ‘Fraseropolis’. It’s on a paper we sponsored several years ago. While it may be a little out of date, I think you’ll get what I mean.

  3. In the Vancouver Regional Growth Strategy, new developments for projected population growth are just estimated guides, thank god. Imagine living in a place where unelected distant bureaucrats dictated what and where homes are built.

    The Plan notes: “1. These projections are to assist in long range planning and are guidelines only.”

  4. You’re correct, Eric. As they stand, they are only guidelines. If they were made more mandatory, it would not be ‘unelected distant bureaucrats’ deciding where homes are built, but local councils.Take your share of the load, no invisible draw bridges please. I also believe it would make their jobs a little easier and give their respective planning departments more direction. This would not rule out neighborhood input, but give them a more inclusionary focus.

    1. The “unelected officials” in the Metro act in a vital coordinating role between 23 municipalities. Still, an elected regional government should be considered to exert more appropriate levels of local accountability over things like transit.

  5. “…while there is monitoring by Metro, there is no enforcement”.

    Franchement! Monitoring is not needed because enforcement is not possible.

    The Metro Plan has to have cost millions and all they could hope for in a democracy were guidelines. Going back with a new plan, with enforceable new building obligations, with sanctions for non compliance would take many more years and cost many more millions. Metro will not be getting and enforceable sanctions, no municipality will sign on to being fined if they don’t meet Metro’s targets.

    Try this stunt and Metro will dissolve.

    1. You could hardly call responsibility for billions in infrastructure (water, sewers, transportation) and deep inter-jurisdictional coordination that resulted in the past achievement of widely admired regional planning goals “guidelines.”

      1. MB. If you would care to read the WHOLE thread you’d learn that we are talking about population numbers in the Plans, which are only guides.

      2. “Calculations” would be the more accurate term. You know, taking census data, development applications, water connection permits, etc etc etc and projecting them forward with appropriate statistical analysis methods (including margins of error).

        Huge difference.

  6. Then the perpetuation and reinforcement of near city-states in Metro. Can I refer to you as Prince Eric from now on?
    Localism will not work and a sustainabe region will be difficult, My Lud
    Municipalities are ‘children of the province’. Some of them need their bums kicked.

    1. Keep the municipalities. But elect individuals to a Metro board on separate lines in the election ballots rather than have councils appoint councillors and mayors. Give the board taxation powers and accountability.

      The biggest hurdle will be the control freaks in the provincial government who prefer to cuff the Metro AND its cities and downplay its vital role in the provincial economy.

      1. Why? Who answers to who? Would the municipalities lose powers?

        Just how many levels of government, with taxation and enforcement powers, do Canadians need? Most European countries are far less decentralized.

        1. Many countries are just a decentralized and have more levels of government than Canada, including regional to deal with regional issues.

          1. I understand a few have three levels of taxation, as we do. Many do not have the state/province level.

            For us to go to a fourth; National, Provincial, Regional, Municipal, would be difficult to get past the voters after the HST vote.

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