Meet the wealthy Los Angeles County community of La Cañada Flintridge, which — in a desperate attempt to avoid approving its first multifamily housing project in more than a decade — argued in court documents filed last week that a California law designed to desegregate historically exclusionary communities, known as “affirmatively furthering fair housing,” is unconstitutional due to the U.S. Supreme Court striking down affirmative action in college admissions.
In other words: building affordable apartments where they haven’t traditionally been built is racially discriminatory — mostly against rich white people.
Census data shows that 60% of La Cañada Flintridge’s 20,000 residents are white and 30% are Asian American, 9% are Latino and just over 1% are Black. The city — which was incorporated in 1976, arguably to avoid the racial integration of its public schools — has a median household income of more than $187,000 and a median home value of nearly $1.7 million.
The twisted logic of the city’s argument would almost be laughable if it weren’t in danger of setting a precedent.
Although La Cañada Flintridge may be the first and only city to claim that California’s fair housing law is unconstitutional, other NIMBYs are intentionally misinterpreting the same law in different ways to block housing.
La Cañada Flintridge is also one of California’s best test cases for a law known as the “builder’s remedy,” which allows developers to bypass local zoning standards for projects with a certain percentage of affordable units in cities without state-approved housing plans.
The city still hasn’t secured state approval for its plan to accommodate a whopping 612 of the 2.5 million homes California needs by 2030 — prompting a development company called Cedar Street Partners to propose a five-story, 80-unit mixed-income building with a 14-room hotel and office space using the builder’s remedy.
Yet La Cañada Flintridge continues to insist that it isn’t subject to the builder’s remedy, despite a court ruling and a notice of violation from the state housing department suggesting otherwise.
The city’s argument: The California Department of Housing and Community Development “has no final and binding power to declare anyone compliant or noncompliant … the courts decide whether cities have a substantially compliant housing element,” Peter Sheridan, special litigation counsel for La Cañada Flintridge, told me.
What that would mean in practice, of course, is lots of litigation — and delayed development. Dylan Casey, executive director of the California Housing Defense Fund, which, separately from the Cedar Street Partners development team, is suing La Cañada Flintridge over its housing plan, pointed out that the city is already a year past its deadline to secure state approval. That’s one more year “where they don’t have the policies in place” to build required housing.
The state Legislature needs to intervene. It can start by clarifying that “you are in substantial compliance when (the state housing department) tells you you’re in substantial compliance,” Garret Weyand, a principal at Cedar Street Partners, told me.
California’s fair housing law also needs to be strengthened. Otherwise, it risks becoming a cousin of the California Environmental Quality Act — a well-intentioned rule too easily hijacked for dubious ends.
The law, which the state enacted in 2018 to preempt former President Donald Trump’s rollback of federal fair housing protections, is currently “so broad and pushes in so many different directions that a city can argue almost anything” affirms fair housing, Chris Elmendorf, a UC Davis law professor and California housing law expert, told me.
This vagueness is inviting a number of spurious claims, such as one levied by a neighborhood group in affluent Mill Valley, which recently challenged an affordable housing project under the fair housing law, arguing that it should be built in an even wealthier area. Santa Monica, meanwhile, is attempting to walk back plans to allow higher-density housing in a key commercial district, arguing that it would reduce fair housing opportunities for minority business owners.
The law’s imprecision is also central to La Cañada Flintridge’s argument that it’s unconstitutional. (Ironically, however, the city also maintains that it has complied with fair housing requirements.)
To survive the “strict scrutiny” standard outlined in the U.S. Supreme Court affirmative action ruling, any tool addressing racial discrimination must have “very clear, not amorphous, not vague methods to deal with the issue, and very clear, not vague, anticipated results,” Sheridan said. “Affirmatively furthering fair housing — and the statute — are vague.”
It’s important for the law to outline specific strategies and goals, because its current opacity enables symbolic “box-checking,” as Elmendorf put it. This makes it easy for cities to avoid taking meaningful action to reverse decades of racially restrictive housing policy.
State Sen. Scott Wiener, a San Francisco Democrat and principal co-author of the fair housing law, told me that legislators plan “to take a close look at the law to see if it needs to change.”
“The last thing we need to do,” he added, “is give NIMBYs more tools to stop new housing.”
Reforms can’t come fast enough. “Every time you think you scrape the bottom of the barrel, you get something like this,” William Sterling, one of the lawyers representing the developers in the builder’s remedy case, told me.
If the state doesn’t take strong action soon, we may discover that the bottom is even deeper than we thought.
Reach Emily Hoeven: emily.hoeven@sfchronicle.com; Twitter: @emily_hoeven
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