How local jurisdictions get around a state law limiting public hearings in housing

Hey Sacramento, Mountain View is laughing at you behind your back. Whacha gonna do bout it?
// photo by Pete Bobb

In California, housing costs have been spiraling out of control in no small part due to the excessive amounts of hearings people have to go through to get a house built. In most states, you might have to go through a city council hearing, but there's not much delay until building permits. In California, with the architecture alone, ignoring zoning and other land planning issues that may come up, there are typically design review boards, planning commission, and city council to go through before a design is even approved to move forward. It has become such a burdensome task that an entire industry offshoot had been created to specialize in purchasing land and getting designs approved through these boards, called entitlements, before flipping them to a company that would eventually build the houses.

As a saying around here goes, "Entitlements are king." Once entitlements are done, the hard and unpredictable part is done and you're golden.

Recently, California had passed a law to address this. Jurisdictions are now limited to a total of 5 hearings:

This bill, until January 1, 2025, would prohibit a city or county from conducting more than 5 hearings, as defined, held pursuant to these provisions, or any other law, ordinance, or regulation requiring a public hearing, if a proposed housing development project complies with the applicable, objective general plan and zoning standards in effect at the time an application is deemed complete, as defined. The bill would require the city or county to consider and either approve or disapprove the housing development project at any of the 5 hearings consistent with the applicable timelines under the Permit Streamlining Act.

Mountain View has been one of the tougher cities in the Bay Area to gain approvals before moving into the "next to impossible" tier like some areas in Marin County, San Francisco, as well as towns like Monte Sereno.

Mountain View, as tough as it had been, had taken a turn for the worse in the past few years when a new Design Review Board chairperson stepped in, who also happens to be a Zoning Board Commissioner.

She rules with an iron fist, in a passive-aggressive way. There are two other board members at any given time, and I've encountered three. Two were just clueless, deriving their opinions solely from where their lunch would eventually be expelled, and the third actually decent. The chairperson seems to have been trained in the profession but just isn't all that good at it. However, she thinks she is the best the world has to offer. She matches the personality I've met of board members in other cities that have an architectural practice and can't land clients because they're just not very good. They blame their misfortunes on anything other than themselves so they get on a DRB to mandate other people do what they want since they can't convince anyone else to their ideas without imposing it by threats of violence. That is the literal profile of a DRB member in Richmond, along with some personal oddities which I won't get into here, as explained to me by a local landscape architect who is extremely prolific in the city. The Mountain View DRB chairperson won't explicitly tell you how to design something, but she will let you know with a wink and a nudge to do something to specific parts of the architecture. It's up to you to interpret and figure out how to get that accomplished. She would even say that she's not going to design it for us...but she is. She just wouldn't admit it. If you don't do what she had been envisioning, she will deny the project and make you keep taking stabs at it until you get to where she wants. 

Not coincidentally, the last good-looking project we did in Mountain View was before she stepped into her role as DRB chair. The last project the firm did in Mountain View, the aesthetic essentially designed by her through fiat, looked horrendous. It was a haphazard show of a confused and uncharacteristic rustic Italian style, with expanses of stone and wood cladding for the sake of itself in a building program, context, and clientele screaming for modern.

Before this law passed and since this current chair stepped into power, we would go to Design Review Board hearing after hearing with no arbitrary finish line in sight until she decrees that the architecture is sufficient to move forward, meeting her arbitrary and subjective demands. All of a sudden, our latest project in the city, the first since the state law passed, she essentially guaranteed a pass in the first DRB hearing. Yeah, I'll believe it when I see it.

Lo and behold, she kept her word. She actually did pass us with the first DRB hearing several weeks ago. The catch was that staff now just deemed our application "incomplete" multiple times over the past year (the project had gone on longer than that, with a different architect before we took over) until we got the architecture the way she wants, regardless of how thorough our submittal was. Magically, we received roughly the same amount of incompletes as we would denials at the DRB in previous times.

Cute trick. Before, she would just about always force applicants to come back to more than 3 hearings, which the new law would then forbid the city from either holding a planning commission hearing or a city council hearing, which would exceed five total hearings. Further, I imagine the city council would not be happy to find themselves holding the hearing on the fifth hearing slot, thereby being forced to vote yes to approve the project. Now instead of forcing her demands at public hearings, she would now just do it at staff level, behind closed doors, before it hits DRB, so all of her inane rounds of architectural demands would not count toward the five total hearings.

Although she would be technically required to move a project to DRB if all the items on a submittal checklist were ticked and all ordinances and design guidelines were followed, she always uses her own subjective design criteria to deny projects. Further, design guidelines are so comprehensive and poorly written that it's kind of like traffic laws. Any competent police officer that follows any driver for five minutes will have grounds to pull that person over. Then there are the incompetent staff members that don't understand how to read plans. One of the reasons for deeming the project incomplete was that our detail did not show a required three-inch window recess. Except it did. We clearly dimensioned the recess, but the staff did not know how to read the detail and assumed the stucco thickness was the recess. No college graduate with more than three months' training would make the mistake the staff did, but with city staff, levels of competency just aren't very stringent. Add a healthy dousing of interpreting words like "encouraged" as "shall", and any DRB member can convince themselves that they have grounds to deem any project incomplete at any time.

In other words, the California law had not effectively changed a thing for the better in Mountain View.

This just goes to show that writing legislation to limit local governments from acting poorly is about as effective as drug laws limiting people from doing drugs. The only solutions with real effect are to abolish the bureaucracy, not reform it.

Expanding the bureaucracy to meet the needs of the expanding bureaucracy is not an Oscar Wilde instruction manual.