So What Do We Do Now? Implementation and Housing: Part 1
Housing policy isn’t designed to be implemented. It's designed to pass.
When I sat down last year to write this Substack’s inaugural post, I knew I was going to make a list. I also knew that ‘Implementing the Housing Policy We Already Have’ was going to be on that list.1
Part of the story in The Road to Resegregation is that we’ve long had good policies (alongside our bad ones and the just plain mediocre). These are policies which took a lot of political energy and money to pass, but they don’t always have the impact we want them to, or much impact at all. Sometimes, we actually just don’t know whether they have had much impact, other than anecdotally.
All throughout the year, as I wrote piece after piece about much sexier parts of housing (like construction defect laws), I kept saying to myself, “Implementation is next.” But it never was. There was always something more timely, or more exciting. Implementation sounds boring. Plus, it’s a hard one to write - why housing policy doesn’t have impact (or the right impact) isn’t just hard to make sexy, it’s very hard to understand, let alone fix.
So I avoided it. Now here we are in 2023 and I have to put it on the priorities list again because I didn’t do it the first time. And now, like so many other folks, I’m thinking about what can be done this coming session. As I explain below, part of the problem is that new legislation is always more enticing than the laws we already have.
So before we all get too deep in what could be, I want to reflect on why we struggle to implement the laws that we make. This is particularly important as we think about the key laws which have passed over the past few years. AB1482, our historic rent law, has struggled on the ground because of lack of information and enforcement. SB9, our major duplex law, has moved slowly out of the gate, although it is early. We have old laws on the books from the 2017 housing package like AB73 - a Sustainable Housing District bill that creates streamlining opportunities for specific plans - but not much evidence or data on whether they are being used. And many are asking what will happen to AB2011/SB6, last year’s major deal that could help produce a lot of housing. Will it? Or better yet, will we use this year's session to help make sure that it does?
A Three Part Challenge: Policy, Plans and Programs
One of the reasons why I was struggling to understand implementation challenges (let alone say something intelligent about them) was that I was lumping housing policy into one big pot. But we have very different types of legislation impacting housing.
What I will just call policy are the rules, regulations and processes which try to regulate how actors in the housing world act, from local jurisdictions to developers to nonprofit housers to tenants.
There are programs, funded efforts that either give money out or spend money internally to do a thing.
There are plans, land use or housing or infrastructure plans which say that we are going to (try to) build this kinda thing in a particular place, or that we intend to pass this law or create this department or program.
Clearly policies, programs and plans are linked,2 but this doesn’t mean we can’t separate them out to better understand why we fail at each. This post is about policies, like the many land use reform laws we’ve seen over the years, or our rent regulation and tenants rights system. Future posts will address challenges in plans (looking at both housing elements and specific plans) and programs.
Four Reasons Policy Implementation is a Struggle
Let’s start with some basic truths, which aren’t self-evident at all. Or at least they weren’t to me.
Number 1. We love making policy more than we love implementing it.
In our current system, the real juice and energy is focused on passing new rules, not implementing the one we have. Some of this is our political system - almost everyone running for office or holding office is in charge of passing laws, not actually implementing them.3 Electeds draw the attention of media and activists and interested parties. What we should do about future laws is what we debate, not the mundane process of implementing the laws we have already passed. Even when we do have fix-it bills designed to repair flaws in previous legislation or programs, they don’t get as much attention as the shinier new objects in the policy world.
As policy folks, we often move on once the victory party has passed, or the toasts to what could have been. There will always be a next legislative session, and the political and budgetary winds may have shifted and everyone may be talking about something new. “Oh, we did something on that last year. This year we want to do something different.”
Sure, legislators do have a certain oversight role, and some take this more seriously than others. But oversight and accountability is often about scandals and problems, or focused on the programs - the ones that cost taxpayers a lot of money - as opposed to policies. After all, if a land use law never gets implemented, and it doesn’t cost us money, does it make a sound?
Number 2. We’re basically flying blind. We don’t really assess the impact of bills before we pass them, and we rarely study them after they are passed.
California doesn’t have a robust system for analyzing housing and land use legislation, before or after passage. Bills that have a major fiscal impact will get studied by the Legislative Analyst's Office (LAO), but with an eye on the state budget, not units produced, homeowners created, tenants protected, or people displaced. This is because we don’t currently model the impact of most state housing bills, especially not the ones that involve land use reform or imagined housing development. If you have seen analysis of those bills over the years, it was probably done by third parties - advocates, academics, and analysts who are either paid by an interested party or doing it for free.4 But state legislators generally don’t have the resources at their fingertips to use sophisticated modeling to understand what a bill will do - or perhaps how certain tweaks in the language or numbers or requirements in a bill could make it better or more likely to have impact.
We have a similar challenge on the flip side. Research institutes or interested parties will occasionally put out analysis of a few hot button bills like AB1482 or SB9, but these are dependent on groups deciding to do the analysis and having the resources to do so. The State will occasionally do analyses of implementation, but it is not a systematic process. It generally requires someone in the Legislature or a powerful advocate or particularly eager cabinet member or Department head to want to dig into a specific piece of legislation.
Analyzing housing and land use bills across a state as vast and diverse as California is super hard. It requires sophisticated analysis by highly trained professionals using quality data. We have lots of great analysts, but someone has to pay them, or we have to hope that some volunteer or group of volunteers will do tens of thousands of dollars worth of work for free. This is more likely to happen when a policy is having a negative impact and someone wants to prove it, rather than just seeing if anything is happening on the ground because of what was done (see Anti Eviction Mapping Project’s epic and famous Map of Ellis Act evictions).5
Number 3. Opposition is smart - they weaken bills when they can’t kill them.
When powerful forces realize they can’t kill a bill, the alternative is to make it less impactful. Both SB9 and AB1482 passed over the strenuous objection of powerful forces in housing. The resultant bills are still historic, but the bill that survives the process often lacks teeth, funding or feasibility. SB9 had owner-occupancy rules added; and AB1482 was given so little funding and support that it barely exists on the state’s website, let alone possesses the kind of enforcement and education mechanisms needed to actually protect tenants.
This means we get bills that often get a lot of fanfare and public attention, which raises hopes and expectations, but are immediately set up to be less impactful. It doesn’t help that much of the organizing and policy machinery then move on to the next bill, leaving relatively few agencies and organizations to try to implement something on very complex ground with little support or resources.
Number 4. Policy isn’t designed to be implemented. It’s designed to pass.
While the kernel of a policy idea or new law generally starts with something that needs to change on the ground, our policy-making system quickly converts it into a digestible morsel that is primarily judged on whether it will pass - not what it will do on the ground. Implementation should be built into bills, but often it is not.
Under our current system, there isn’t much choice. Leg directors, lobbyists, and land use lawyers are some of the smartest people you meet in this business - some terrifyingly so - but their professional obligation is to win something for their clients and members. They are taught, and teach each other, to focus - be narrower, avoid unnecessary conflicts. Be strategic.
For instance, virtually every policy worth passing could benefit from being paired with a program or a plan, with dollars attached to somebody’s budget that drives implementation on the ground. This could be infrastructure which educates tenants about their new rights. Or, funding for small or new or BIPOC developers to do SB9 projects, perhaps with extra incentives to ones which bring extra housing justice to the table. But these programs cost money. That will get you a fiscal tag, which means going through Budget Committees and Appropriations, which means your bill has an even more brutal gauntlet.6
Building Policy to Work
The sad thing is that I could go on. There is more to be said about where progressive priorities have shifted, about the challenging time lag for implementation (it takes years), and about which institutions have and have not taken implementation seriously. We could talk about how implementation is too often framed as enforcement and accountability, as opposed to creating positive change on the ground.7 In future posts on plans and programs, I will come back to some of these issues.
So what do we do? How do we change this system? How do we start legislating in a way that designs policies to succeed, or making sure we have the follow through to make sure things work on the ground?
While there is always room for a culture change, I think two shorter term shifts we can take are developing a more holistic economy + policy approach, and advocating for a major push from leadership. Both of these issues are ones I will come back to in more detail in future posts, but it is important to talk about them briefly here so we connect them to implementation and its struggles.
Economy + Policy
Better implementation starts thinking beyond policy when making policy. Good housing policy generally drives progressive change in the ecosystem or industry subsector/s it touches on - whether rental housing, city housing plans, or commercial real estate. In an ideal world, we’re matching policies with programs and plans and budget allocations, building multisector collaborations which can nudge all the actors in an ecosystem to embrace change collectively. We generally don’t have this holistic approach to making policy, with some important exceptions.
Key actors in the burgeoning ADU ecosystem have done an admirable job working on policy and implementation at the same time. The Casita Coalition and its various allies, members and predecessors fought to reform housing policy over a number of years - first legalizing ADUs and then supporting them. But at the same time, they did work amongst themselves and in parts of the real estate and finance industries to ensure that actors on the ground can take advantage of new opportunities. They have worked to build organizations and companies and pilot projects. They have worked to test laws and support tweaks that can only be found when you do the implementation. It helps that in the ADU space, the consumers and producers of ADUs are more unified than in other aspects of housing. People are pushing laws to reform their own industry, as opposed to having laws pushed through them.
But there is much we can learn from this transformation. AB2011/SB6 advocates in particular should take this lesson and think about what kinds of work can be done to reorganize and restructure the commercial real estate ecosystems, so that it is prepared for the type of sustained engagement needed to see positive impacts on the ground. These bills were announced alongside funding for some shovel-ready projects, but that is not the same as a sustained plan to fund and support the changes in business models, financing plans, design standards, fiscal incentives and more needed to see these conversions through. When you see an underutilized strip mall that seems perfect for housing, remember that it isn’t just land use laws that need to change for it to become housing.
Commercial land conversion can also learn from where the ADU movement is still struggling. Local jurisdictions still can be obstacles, at times because of lack of resources and staff capacity, not just unwillingness. Financing isn’t there yet, at least not enough at the right terms. New regional housing finance agencies, another one of my 2023 priorities, could be critical players in both ADU and commercial conversion financing and generally drive implementation on the ground through the type of funding and technical assistance that is so often missing.
The Push From Leadership
The other vital change is that we need our most powerful elected and unelected leaders to start sending different signals to the policymaking machine. If we want to win, we need to change what it means to win. Elected leaders must use their power to insist on bold bills that are designed to be implemented, and designed to actually solve problems and make impact, and give the proponents of these more complete bills an iron clad promise that they will be protected throughout the legislative process. If leaders demand bold bills and protect them, the smart folks who operate the policymaking machine can certainly deliver. So long as we accept this very fragmented and piecemeal system, our policies will always struggle on their way between the Governor's desk and Californian homes.
This new leadership push must also insist on making analysis-driven policy possible - let alone a reality. They can work with the analytics industry, policy advocates, research centers and data scientists so that our world class analytical capacity in California actually gets used to evaluate policy before its passed, and track its implementation much more effectively and systematically. This will require funds, but it mostly requires leadership and the willingness to address the full civic data infrastructure system, from tech companies to universities to activist groups and advocates.
I’ll come back to civic data infrastructure, ways of changing how housing policy gets made, regional housing finance agencies and the challenges with land use conversion in future posts. They aren’t just critical to implementation, but part of my larger 2023 priorities list. With some dedicated changes over the next few years, we can make a housing policy system that is actually designed to work where it matters - on the ground in California’s homes.
A special thanks to Michael Lane, Jennifer Martinez, David Barboza and my amazing editor/publisher/producer for helpful comments and ideas. All errors remain my own.
We’ve recently passed a series of laws forcing local jurisdictions to do a lot more when it comes to their housing plans, which have long been state-mandated. Housing plans will call for policy changes, or for new programs. Specific plans and land use plans will often use specific policies or programs to accomplish their goals.
I think there is also the impression amongst some political operatives that voters care about or even know who passed what law. I have my doubts.
For really controversial bills like SB50 from a few years back, we had competing analyses from different consultants as to the impact of the bill.
Challenges go even deeper than that. Causality is brutal to prove, let alone avoiding the correlation is not causality problem. Thanks David Barboza for pointing this out.
Appropriations is a good place for bills to be killed for purely political or economic reasons that have nothing to do with their substance. You can even be routed into Appropriations with limited spending in the bill.
See for instance Governor Newsom’s recent push on homelessness funding. I’m reminded of a quote from a Finnish educator who was consulted on our terrible schools, who said something to the extent that ‘accountability is only necessary when someone abdicates responsibility.’ I’d love us to focus more on responsibility.