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Z. Bronstein

The state housing secrecy just keeps getting worse and worse

Posted by: Zelda Bronstein - May 28, 2023 - 10:57 AM PDT

Crucial planning decisions are made behind closed-doors, with Yimby stakeholders—and the public can't even get the basic records.

Ben Metcalf directed the California Department of Housing and Community Development from November 2015 to September 2019. In February 2021, Metcalf, now managing director of the Terner Center of Housing Innovation at UC Berkeley, said that the state’s new housing laws had given his former employer “the potential to be moving like the CIA. Most of the time, HCD’s work is done below the waterline.”

He meant that as a tribute to HCD’s effectiveness.

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Covert operations are usually hidden from the public. But three months later, HCD advertised its penchant for secrecy. As it prepared to update the statewide housing plan in May 2021, the agency invited members of the public to share their views of California’s housing policies via a series of online “listening sessions.” Then it refused to divulge what it had heard, claiming that to do so would violate privacy.

It appears that the privacy that was allegedly at risk was HCD’s. In response to my Public Records Act request to see the messages entered in Chat and staff notes from the meetings, HCD stated that those records

“contain confidential information and it has been determined that the public interest in not disclosing this confidential information clearly outweighs the public interest in its disclosure. This confidential information is exempt from disclosure under deliberative process exemption set forth in Government Code section 6255 and these records have been withheld. Megan Kirkeby, Deputy Director of the Housing Policy Development Division is responsible for withholding these records. “

HCD didn’t explain how it determined that the public interest in withholding the requested information clearly outweighed the public interest in its disclosure.

Now HCD is conducting another, more audacious and far more consequential public-engagement charade. This time the subject is the revision of the state’s Regional Housing Needs Allocations for the 7th cycle, ending in 2040.

RHNA law, which stipulates how much housing California cities must plan for, has always been controversial. But changes made to the law since 2017, most notably those entailed by Scott Wiener’s SB 828 and Evan Low’s AB 1397, exponentially increased both cities’ allocations and HCD’s authority, sparking major political battles throughout the state.

AB 101: The RHNA revamping directive

The housing budget bill AB 101, signed into law by Governor Newsom in July 2019, states that the Legislature intends “to revamp” RHNA “in order to accomplish the following objectives:”

(1) Create a fair, transparent, and objective process for identifying housing needs across the state.

(2) Strategically plan for housing growth according to statewide priorities, consistent with Section 65041.1 of the Government Code, and expected future need for housing at all income levels.

(3) Encourage increased development to address the state’s housing affordability issues.

(4) Improve compliance and outcomes through incentives and enforcement.

AB 101 stipulated that the revamping process was to proceed as follows:

By December 31, 2022, the department [HCD], in collaboration with the Office of Planning and Research and after engaging in stakeholder participation, shall develop a recommended improved regional housing need allocation process and methodology that promotes and streamlines housing development and substantially addresses California’s housing shortage.

“Streamlining housing development” is code for relaxing restrictions on new projects and tightening them on local land use authority.

The Legislature did not specify how HCD and OPR were to engage stakeholders. Nor did it indicate who should be considered a stakeholder. AB 101 does say that “the department [HCD] may appoint a third-party consultant to facilitate a comprehensive review of the current regional housing need allocation and methodology.” The law also states that after engaging stakeholders, HCD “shall submit a report of its findings and recommendations to the Legislature.”

HCD’s stakeholder engagement initiative

HCD missed the December 31, 2022 deadline for developing recommendations to improve RHNA. Only on March 9, 2023, did the agency launch a “stakeholder initiative.” Under the tag “California’s Housing Future 2040; The Next RHNA,” HCD announced that from March through early June it would conduct an “intensive stakeholder engagement” process.

The process’s guiding principles would include:

Ensure RHNA is a fair, transparent, objective, and streamlined process for identifying housing need.

Here “streamlined” applies to the RHNA process, not housing development. Once again, the term’s meaning is murky. HCD doesn’t explain what makes a process logical or efficient, or what constitutes a meaningful outcome.

The stakeholder initiative has three formal components:

In addition, the agency set up a “direct email” address, to which members of the public may submit comments at any time. CAHousingFuture2040@hcd.ca.gov

The selective, secretive survey

The survey covers five topics that the agency has identified as priorities:

HCD did not explain how it identified these topics as priorities.

Nor did it mention the California State Auditor’s March 2022 finding that HCD “must improve its processes so that communities can adequately plan for housing.” The Auditor found that HCD staff did not accurately enter the data underlying their calculations of projected housing need, resulting in understated projections of housing need in two of the reviewed regions. It also found that the agency “could not demonstrate that it adequately considered all of the factors state law requires” and “could not support its use of healthy housing vacancy rates.”

Yet during the March 9 webinar introducing the stakeholder initiative, HCD staffer Marisa Prasse said that the stakeholder initiative would “ensure that changes made through the 6th [RHNA] cycle will stay in place.” That statement seems to conflict with the Auditor’s findings.

It also appears to disregard the Terner Center’s February 28 report to the Legislature’s housing committees that, despite California’s passage since 2016 of nearly a hundred housing laws, “[h]ousing unaffordability remains high and housing production relatively stagnant.”

Essays, indeed books, have been written about the survey subjects, yet the agency says it should the survey should take only ten to 15 minutes to complete. That estimate reflects the limits on responses imposed by the survey’s formats.

For the first two topics, addressing respectively group quarters and the COG process, members of the public are offered only multiple-choice answers. For example, under group housing, the survey asks among other things:

“In past RHNA cycles, populations that live in group quarters were considered separately from populations projected to live in housing units as defined by the census. Should certain populations that live in group quarters be included in the Regional Housing Needs Determination? This would lead to higher Regional Housing Needs Determinations but would allow jurisdictions to count those types of group quarters on their Annual Progress Reports.”

The survey offers 11 possible answers, inviting respondents to “select all of the types of group quarter populations you would like to see included in the Regional Housing Needs Determination.” The first answer was “No, keep all group quarters populations separate.” Each of the next ten designated a different group quarter population, including “College/University Student Housing,” “Correctional Facilities,” “Emergency and Transitional shelters,” “Mental (Psychiatric) Hospitals.” Respondents have no opportunity to explain their choices.

For the next two topics, RHNA methodology/COGs and Affirmatively Furthering Fair Housing, HCD replaced the multiple-choice format with an invitation to write up to 1,000 characters—at most, 250 words—in response to questions such as:

“Recognizing that RHNA is only one of many tools to further community development goals, are there ways in which to improve RHNA to further community development and anti-displacement goals? If so how?”

“What are the best data sources to assess efficient travel patterns and jobs/housing fit across regions and why?”

For the fifth topic, the survey offered the 1,000-character option in response to questions such as:

“Are there ways in which the RHNA process can better take into consideration climate-related environmental hazards (e.g. wildfire risk, drought, extreme heat, inland flooding, extreme weather events, and sea level rise) and assess which areas have the highest risk exposure? If so, how?”

Only the multiple-choice response is available for this question:

“When housing units are lost during a disaster, the Regional Housing Needs Determination in that region is increased to account for those lost units. Which of the following options should the state consider when planning for future housing after a disaster?”

The choices were:

Again, the survey gives respondents no opportunity to explain their choices.

But the problem isn’t that the survey format precludes an in-depth response. After all, people can always send additional comments to HCD. Nor is it that HCD says that due to “capacity,” it “will not respond to each survey response.” That’s reasonable.

Rather, the real problem is that, as with the 2021 listening sessions, HCD is not going to make the public’s comments public.

On April 28, I asked HCD Communications Specialist Alicia Murillo if the responses to the survey would be publicly posted. Murilllo replied: “We plan to share a summary of feedback received during our stakeholder engagement period, including a summary of feedback received via the survey and Sounding Board.” In other words: No.

Why not? After all, the survey is online. Posting the responses would involve minimal effort. No transcription required. Just put them up.

Moreover, while the agency says that it will “utilize the survey responses to inform HCD’s recommendations for improving the RHNA process and methodology,” it doesn’t say how.

The Sounding Board: invitees only

As Murillo’s reply indicated, HCD also plans to sequester public comments on the subjects addressed by the Sounding Board. Here the agency has drawn its curtain of secrecy even more closely: The Sounding Board’s proceedings will be closed to the public.

In the March 9 webinar, HCD staffer Marisa Prasse offered the following rationale for barring the public from the Sounding Board’s deliberations:

HCD understands we need to get the input of known experts in the field, and we want to create space for that dialogue, but we know that too large of a meeting could frustrate the purposes of such a meeting. We think that anything over about thirty people would frustrate the utility of such a group. And so accordingly, HCD plans to convene a sounding board of about thirty technical experts for four meetings to discuss a few specific technical questions related to RHNA determination and methodology. This will not be a decision-making body, but rather a group of stakeholders HCD has identified with important knowledge that will help to brainstorm ideas to known technical issues. These meetings will not be open to the public, but the agendas will be published on our website and folks can submit written public comments on agenda items.

When she stated that the Sounding Board “will not be a decision-making body,” Prasse was presumably foreclosing challenges to the initiative’s closed door format based on California’s sunshine law for state agencies, the Bagley-Keene Open Meeting Act (not to be confused with the state’s sunshine law for local agencies, the better-known Brown Act).

On April 8, I asked Alicia Murillo on what grounds HCD exempted the meetings of the Sounding Board from the Bagley-Keene Act. Murillo, who usually gets back to me right away, has yet to reply.

Each of the Sounding Board’s meetings is scheduled to last only two hours. We are told that “the goal” of the first, May 3 meeting, was “to dive deep and create possible ideas for ways to better capture existing housing needs and address the identified Regional Housing Needs Determination (RHND)-related questions.”

The agenda for that meeting spends 20 minutes on introductions, and then allots 25 minutes each to homelessness, cost burden, jobs/housing imbalance, and comparable regions. Twenty-five minutes is barely enough time for even one commentator, let alone 30, to take a deep dive into any of these subjects—so will Sounding Board members also be submitting written statements to HCD? If not, the Sounding Board is a farce.

In any case, how could allowing the public to observe the Sounding Board’s deliberations and to view whatever written materials its members might submit to HCD “frustrate the purposes of the meeting”? During the March 9 webinar, Prasse said that the “focus of stakeholder engagement” would include increasing transparency and accountability. Barring the public makes a mockery of those goals.

On May 8, I submitted a Public Records Act request to HCD asking to see all documentation of the Sounding Board’s proceedings, including any written materials submitted by the group’s members, staff notes on its proceedings, and public comments on its agendas.

On May 18, HCD said that it had responsive documents, and would make them available on a rolling basis within 21 days—after the Sounding Board process is over.

Stakeholders, experts, and advocates

HCD’s descriptions of the Sounding Board are inconsistent. During the March 9 webinar, a slide referenced “~30 technical experts that will include representation from academics, advocates, demographers, local and regional government, and the legislature.” By contrast, the cover note for the Sounding Board’s May 3 meeting states: “HCD is convening a Sounding Board of approximately 30 stakeholders as part of the California’s Housing Future 2040 stakeholder engagement initiative.” Nothing about technical experts.

The provocative category is “advocates.” Advocates of exactly what—the state’s marketized housing regime? An affirmative answer is suggested by the fact that HCD invited two Yimby organizations, California Yimby and Yimby Law, and a third group, the Orange County-based Kennedy Commission, whose website displays Yimby Action’s take on RHNA and Housing Elements. (Despite the official sound of its name, the Kennedy Commission is a private organization.)

Were critics of the state’s marketized housing regime disqualified from Sounding Board representation?

What brings the last question to mind is that the invitee list (see below) does not include the Embarcadero Institute’s Gab Layton. Layton has done some of the deepest dives into the RHNA numbers and come up with penetrating questions about the agency’s calculations. Why wasn’t she appointed to the panel?

What’s next?

The Sounding Board has three more meetings. On May 15, it considered Affirmatively Furthering Fair Housing and Furthering Statutory Objectives of RHNA; on May 31, it will take up Housing + Transportation Planning Alignment & Climate Change; the agenda for June 5 will be Process Improvements & Overflow from Previous Meetings.

You can see the agenda here.

Two high-profile topics missing from the survey and the Sounding Board agendas are how California’s population decline and remote work might affect the RHNAs.

Former Albany City Councilmember Michael Barnes told me that he raised both of those issues in his comments on the Sounding Board’s May 3 agenda that he sent to the Housing Future 2040 team.

The HCD staffers thanked him for his comments and said that they “will discuss them with our team.”

Barnes asked: “Does that mean the participants in the Sounding Board process will not see all of the comments? Will the comments be available for the public to see?”

HCD’s robotic reply: “We have received your comments and they have been shared with our California’s Housing Future 2040 team.”

On March 9, Prasse said that HCD is going to consult many other parties about the RHNA do-over. The agency will be holding “listening sessions” with state agencies and “other partners;” meeting with Councils of Governments; and making presentations at conferences and “recurring state coordination meetings.” On July 1, it will submit a progress update to the Legislature. It will make its final recommendations on December 31, 2023.

Here are the Sounding Board Invitees.

Academic Representatives:

Ben Metcalf – Terner Center for Housing Innovation at the University of California at Berkeley

Chris Elmendorf – Professor of Law at the UC Davis School of Law

Dowell Myers – Professor of Policy, Planning, and Demography at the USC Sol School of Public Policy

Paavo Monkkonen – Professor of Urban Planning and Public Policy at the UCLA Luskin School of Public Affairs

Other Representatives:

American Planning Association California Chapter (APA California)

Assembly Housing Committee

Association of Bay Area Governments (ABAG)

California Air Resources Board (CARB)

California Association of Councils of Governments (CALCOG)

California Building Industry Association (CBIA)

California Business, Consumer Services, and Housing Agency (BCSH)

California Rural Legal Assistance Foundation (CRLAF)

California YIMBY

Center for Continuing Study of the California Economy (CCSCE)

Demographic Research Unit of the California Department of Finance (DOF)

Fresno Council of Governments

Governor’s Office of Planning and Research (OPR)

Kennedy Commission

Leadership Counsel for Justice and Accountability

League of California Cities (Cal Cities)

Merced County Association of Governments (MCAG)

Public Advocates

Public Interest Law Project (PILP)

Rural County Representatives of California (RCRC)

Sacramento Area Council of Governments (SACOG)

San Diego Association of Governments (SANDAG)

Senate Housing Committee

Southern California Association of Governments (SCAG)

Urban Counties of California

YIMBY Law