Public Comment

On September 29, 2021, the Mayor of Berkeley sent out a mild call to arms for his city. It is called “The Future of Housing in Berkeley.” He calls on the city’s people to support an alleged "need" to build almost 9000 new housing units over the next 8 years. It is a tall order. The neighborhoods have been clamoring for affordable housing for years, yet their voices have been drowned out by the whispered arrogance of the developers who make their real money on market rate housing. Over the last few years, some 96% of new housing has been market rate (aka unaffordable for low income families). And still, "Sacramento" (aka California state government) has convinced this Mayor that more housing can be mandated. And he buys it.

This should be a story told in satire. But the lightness of spirit required would seem forced. If, without qualms, this Mayor accepts blithe legal assurances that the state can constitutionally impose mandates which override the autonomy of a charter city like Berkeley, 60% of whose residents are renters, is he not flirting with the truly tragic? 

Once audacious, Berkeley has now become known for its “negative-hubris.” 

Is construction just a “social construct”? 

The Mayor’s rationale for his "call" to acceptance is his thought that Berkeley’s population has supposedly increased at the rate of 1% a year. However, census figures show that the city’s population is about the same as it was 40 years ago. It dropped to a low point around 2000, and then grew at a rate somewhat less than 1% a year to a level comparable to that earlier level. Where’s the real population increase? 

And how come there are all these empty housing units in this town, apartments that have, in many cases, remained vacant and unrented for years. Are they left over from when the population dropped? Urban legend says that they number over a thousand. Half of that would still be enormous in this time of an alleged (state proclaimed) housing shortage. 

Eight years ago, when the affordability crisis was being hyped as that housing "shortage," there was a “Build-Brigade” that would come to City Council chanting “build build build.” It promised that the increase in supply would bring down prices and rent levels. Over that eight years, over a thousand new units have been built, all “market-rate,” as is the habit of for-profit developers, with only 72 units included as "affordable." Berkeley’s zoning code only calls for 20% affordable units in any new development. 

The result has been a “market-rate” glut. We see “Now Leasing” signs all over town. Yet rent levels have not gone down. Indeed, the “affordability crisis” has gotten worse. Parents who have worked to put their kids through high school here are now realizing that those children are going to have to leave town to find affordable housing. They will be joining the thousands of low income families, including a large percentage of the black residents, who have been displaced for that very reason. On the other hand, those with six figure incomes have had no trouble finding housing. 

Nevertheless, "Sacramento" pretends to mandate 9000 new units over 8 years. Actually, the number is 8934. Its level of precision betrays it as a computer-projection, derived unencumbered by any real community involvement. 

And it comes to us as "excess." While the estimated number of residence units in Berkeley is around 47,000, the mandated thousand new units a year would provide 2% increase, exceeding the Mayor’s reference to population growth. "Excess" is not only a euphemism for market glut, it also throws "affordability" to the winds. 

But we should be used to the imposition of excess by now. Congress does it when it budgets more funds for the military than the military itself requests. Congress knows that military industries have become the essential foundation of the US economy (by default, since most heavy industries have moved offshore -- with federal subsidies). That and urban constructin are in economic parallel. Neither military production nor construction function within our human-level retail economy. Walmart does not carry B-52s any more than it carries 5 story apartment buildings. 

For us "humans," we are as disconnected from military industry as we are from the construction industry. Since most urban production jobs have been absorbed into social services and IT, only construction is left as the major urban industry. Low income families that do not get jobs in IT or construction or the military get displaced. Gone, searching for jobs in the central valley. 

For which economy, then, is "Sacramento" calling for the "care and feeding" of this housing glut? Only the corporate economy is there to benefit from it. When humans buy goods (commodities), they buy things to use (called "use values"). What corporations buy in the form of houses or military equipment are neither commodities nor use-values but things to be held as corporate assets. Their "use" is only to increase the price-value of corporate securities on securities markets. Securities price increases constitute the main form of corporate profit. The earnings from derivative trading are orders of magnitude higher than the profit from production. A real estate financial corporation buys up housing units to increase its asset value, whether those units are rented or not. The many new units sitting behind “Now Leasing” signs amount to capital gains as assets for real estate corporations (like BlackStone or Invitation Homes), regardless of whether they are rented or not. 

In other words, Congressional military budgeting is a government performance for the preservation and enhancement of the military corporate structure. California cities perform similarly with respect to the construction industry. 

In sum, securities speculation has replaced commodity profitability, construction (in both housing and infrastructure) has replaced urban commodity production (in investment and jobs), and military industries have replaced the heavy industry on which the productive economy depended. Within this multi-layered system of non-commodity production, "Sacramento” is doing its part by "mandating" that cities just do their part. 

And the Mayor says, "Okay." As a side note, Berkeley will be contributing to providing assets for the corporate economy by eliminating single family zones (R1 and R2), thus opening them for multiplex construction. And here too, the Build-Brigade has been hard at work, arguing that it was single family zoning that caused racially segregated neighborhoods, and not institutional racism that created segregated neighborhoods through redlining and racial covenants. But Berkeley’s on-going racial history is a different topic. 

The Political Machinery of “Hubris in Housing”  

What "Sacramento" is "mandating" is based on an untested assumption that a state bill (SB-35) can constitutionally do what it claims to do. This is the bill under which the state instructs cities to build housing in order to meet the state’s "need." Here’s how it works. 

The state’s housing department has a "thing" called RHNA [Regional Housing Needs Assessment], which it uses to define state “housing needs.” For Bay Area cities, RHNA deploys ABAG [Association of Bay Area Governments] as its instrument for estimating future Bay Area responsibilities. ABAG makes "allocations" to each city as their responsibility. And "Sacramento" then proclaims that to be a mandate (8934 units, in Berkeley’s case). 

It’s a game they play with numbers. Eight years ago, RHNA said there would be a 30% increase in Berkeley’s population by 2020, based on a computer projection. That didn’t happen. The affordability crisis that did happen, however, didn’t compute in RHNA’s program. As a non-factor, its absence from the discussion of "need" enabled the “Build-Brigade” to postulate a "housing" shortage. But in the absence of a calculation of affordability (rents not to exceed 30% of a tenant’s income), whose "needs" would the excess construction satisfy? the state’s? The construction industry? The developers? The corporations? Some of the rich people? Which? "Sacramento" doesn’t say. But it must in order to mandate. 

Where there is a real shortage, then, is in the power to mandate. ABAG does not have the statutory power to tell anyone what they must do. It can only propose and recommend (called "allocating"). "Sacramento" cannot mandate that a charter city obey within its purview of “urban affairs.” It can only override the autonomy provided by a city’s charter in terms of urgent “state affairs.” And they must meet certain requirements. The law that articulates such a "state affair" must be a “general law,” one which demonstrates an urgent state need, and which will be implemented and enforced uniformly throughout the state. It is that need for uniformity, beside the need for housing, that presents a problem for the state’s ability to mandate. 

SB-35 requires that each charter city modify its “Housing Element” (aka “housing plan”) to show it can accommodate ABAG’s allocation. If a city does not do so to the state’s satisfaction, "Sacramento" can take that city to civil court, and order "sanctions." 

We know about "sanctions." They are what the US imposes on other countries that insist on their sovereignty, like Cuba and Venezuela. That means that, in his call to arms, what the Mayor is really asking the people of Berkeley to do is support him so that "Sacramento" does not treat Berkeley the way the US treats Cuba. 

Is this for real? The “Build-Brigade” will say “yes, it is for real.” Both "Sacramento" and the Build-Brigade claim charter city autonomy can be overridden. Sanctions will only be to disguise the fact that there is no housing crisis, only an affordability crisis, which SB-35 will not resolve. 

The constitutionality problem  

What happens if the state takes a city to civil court and gets "sanctions"? According to SB-35, the sanctions the court would impose would be to empower the state to take control of the city’s permitting process, streamlining it in order to get housing construction under way (sort of like US sanctions on another country taking the form of control over the other’s international financing). These are the terms contained in the law. The state, as Plaintiff, would be able to get construction under way. It would be a seizure of a city’s permitting process, authorized by the law itself. And SB-35 was originally enacted to stop charter cities from refusing to allow affordable housing development. 

Would such a seizure of city function be constitutional in California? The constitutionality of SB-35 has been tested three times in California courts, and affirmed each time. But in each case, the arguments focused on the urgency and priority of the state’s housing "needs." They did not address the issue of enforcement uniformity. The power to sanction in the specific way delineated in the law has not yet been tested. 

And it presents a significant legal problem. Each city has a different zoning code. The state, having taken control of the permitting process, would still be bound by the specifics of the city’s zoning code. Its seizure of the permitting process would be contingent on each city’s specific zoning structure. Implementation of actual court sanctions would thus be specific to each city. And that specificity is unavoidable because its terms are internal to the law, as part of its provisions for enforcement. In other words, enforcement would be anything but uniform. The law has non-uniformity of enforcement built into it. Without uniformity, the law is ineligible to override city autonomy. 

If enforcement were at the hands of a different law, and operated from a separate jurisdiction, then this non-uniformity would not be an issue. But it isn’t. 

Indeed, what the state will obtain, through court sanctions in the law’s terms, will actually be the ability to operate gratuitously and even arbitrarily (by ministerial discretion). 

And, of course, the act of seizing the city’s zoning process will not produce affordable housing. Berkeley’s zoning law, for instance, only requires developers to include 20% affordable unit. Whoever may control the city’s permitting process, they will both by shackled by the same structure, and be prey for the for-profit developers. Under SB-35, the responsibility to the people that it promises will be a pipedream. 

And the Mayor falls for it. The truth is that California cities are being sold to real estate financial corporations as assets. 

A comedic end note  

The Mayor extols the Planning Department for revising the zoning code, transforming it from chaos to readability. No prior attempt to do so had occurred because a chaotic legal system is perfect for slowing people down, discouraging individual projects and small investors. But now, in the context of large streamlined construction projects, clarity of code is desirable. Buried in the depths of the revised version, however, is a plethora of discretionary decisions available to the city, and therefore to developers, most of which fail to specify who, or under what authority, the discretionary decisions is to be made. 

The dice are loaded in the revision with pro-corporate bias.