California Officials Force Elderly Couple To Dismantle Home, Citing Blocked Ocean Views
Plus: Austin's newly passed zoning reforms could be in legal jeopardy, HUD releases its latest census of the homeless population, and a little-discussed Florida reform is spurring a wave of home construction.
The year winds down, but housing news steams along here at Rent Free. This week's stories include:
- Austin, Texas, just passed some of the nation's best "middle housing" reforms that allow more housing in single-family neighborhoods. Some worry a recent court decision puts those reform in legal jeopardy.
- The federal government reports a big increase in the homeless population.
- Did Florida secretly pass the best zoning reform of the year?
But first, our lead item about a California couple who lost their fight with the state regulators ordering them to dismantle their home:
Court Ruling Means 70-Year-Old Couple Must Tear Down Their Home on the California Coast
The two-story mobile home that Michael and Susan Christian own and live in in the Orange County beach community of San Clemente, California, isn't blighted, dangerous, ugly, or even unpopular with the neighbors.
But it is a little too tall, according to state officials with the California Coastal Commission.
For over a decade, the commission—a state agency with the final say over most development on the California coast—has been arguing that the Christians' addition of a second story to their home obscures ocean views from a nearby walking trail. It also argued the couple added that second story without getting the required permits from the commission.
Late last month, a California appeals court sided with the commission, ruling that the Christians must comply with its demands to shrink their house from its current 22 feet in height down to 16 feet. The Christians' representatives say that will require them to completely tear down and rebuild the home.
You are reading Rent Free from Christian Britschgi and Reason. Get more of Christian's urban regulation, development, and zoning coverage.
"They're an elderly couple. They're in their 70s. They have all kinds of health issues. This is their only home; they live in it," says Lee Andelin, one of the Christians' lawyers. Dismantling the home "is going to cost them millions of dollars, for what? There's not a broader benefit for the public."
Andelin argues the ruling will embolden the commission to place even more restrictions on coastal homeowners' ability to improve their properties.
The Coastal Commission's Long Anti-Development History
The California Coastal Commission has been called "the single most powerful land use authority in the United States."
Created in the 1970s to stop a "corporate land grab" on California's coast, it has the final say over local government regulations on coastal development and most individual projects within the coastal zone.
The commission's "yes in my backyard" (YIMBY) critics argue its overregulation of development has made coastal housing unaffordable to most Californians. One 2010 study found that areas regulated by the commission have higher housing costs and higher incomes.
Property rights advocates argue that the commission's discretionary powers give property owners little guidance on what they're allowed to do on their properties. That leaves them exposed to endless process and appeals when applying for permits—and huge fines for doing anything without the right permits.
The Christians' Story
The Christians got approval to expand their home in 2011 from the California Department of Housing and Community Development, which regulates mobile home construction. At the time, the Christians thought that was the only approval they needed.
In 2014, the Coastal Commission sent the Christians a letter of violation saying that the already-completed renovations were unlawful without their approval.
The couple applied for an after-the-fact permit, which the commission approved in 2016 only on the condition that they cut the size of their house down from 22 feet to 16 feet to avoid "significant" view impacts from nearby walking trails.
The Christians stressed to the commission that they couldn't just lop off six feet of their house without tearing down the whole thing and starting over.
That failed to change the commission's mind. So the Christians sued, arguing the view impacts of their second story were not significant. Pointing to its approval of taller buildings near other coastal trails and parks, they also argued that the commission was applying subjective and ad hoc standards on view impacts.
In November, a state appeals court rejected the Christians' arguments, finding instead that the commission had wide discretion to determine which view impacts were significant. The court also ruled that the commission was under no obligation to establish objective criteria on view impacts.
Determining when new construction adversely affected protected ocean views "will inherently depend on some site-specific factors that require subjective interpretation by the Commission," reads the unpublished opinion.
Wider Impact
Because the appeals court decision is an unpublished opinion, it's not a binding precedent. The Christians' lawyers argue that it will nevertheless encourage the Coastal Commission to deny or condition permit applications on subjective view-impact grounds.
The Christians' options after the appeals court decision are limited. Andelin says they are still within the deadline to appeal to the California Supreme Court, but the odds of the court taking up their case are slim.
Provided they don't appeal, the Christians have no other option than to comply with the commission's demands to tear down their house and build something smaller in its place.
It's an expensive and difficult prospect for the aging couple. But noncompliance could see the Christians hit with tens of thousands of dollars in daily fines.
"They'll have to move out," says Andelin. "It's a hardship."
Austin Passed a Package of Very Good Zoning Reforms. Are They In Legal Jeopardy?
Last week, Rent Free covered the Austin City Council's passage of an ordinance allowing property owners to build up to three homes on all residential plots citywide.
When one considers the fine print, it's one of the more ambitious repeals of single-family zoning that's passed anywhere in the country. But Austin's new regime could be short-lived.
Last week, in the case Acuña v. City of Austin, a local Travis County court struck down a previous set of zoning reforms Austin had passed in 2019 creating density bonuses and allowing housing in commercial zones. The court sided with suing homeowners who'd argued they hadn't been provided with the required individualized notice of the zoning changes and that their "right to protest" zoning changes had therefore been violated.
Jack Craver, author of the Austin Politics Newsletter*, writes that the "radical" opinion could effectively outlaw all of Austin's density bonus programs (which allow developers to build larger individual projects in exchange for including affordable units).
The ruling doesn't directly involve the more recent zoning reforms the city passed. The City Council also passed the new reforms via a special process and with a supermajority vote, meaning they don't have to give homeowners individualized notice of zoning changes.
But Douglas Becker, the lawyer for the plaintiffs in Acuña, tells Reason the city still arguably violated Austinites' right to protest zoning changes. Becker says he's conferred with clients about challenging the most recent reforms, but no decisions have been made yet.
Federal Survey Shows Large Year-Over-Year Increase in Homelessness
There are roughly 650,000 homeless people in the country, according to the U.S. Department of Housing and Urban Development's (HUD) 2023 Point-in-Time Count report, which counts all homeless people on a single night in January.
The count, published this past Friday, found that homelessness had increased 12 percent nationwide since the 2022 count. Per the report, four in 10 homeless people are unsheltered, meaning they live on the streets or in other places not considered fit for human habitation.
A HUD press release credits the housing spending in the Biden administration's $1.9 trillion American Rescue Plan from 2021 for reducing homelessness between 2020 and 2022. The expiration of those additional resources "contributed" to this year's rise in homelessness, HUD said.
That's a tough claim to fact-check. HUD waived jurisdictions' requirement to complete a full Point-in-Time count in 2021 because of COVID concerns. Last year's Point-in-Time report said the 2021 partial count "artificially reduced" the 2021 homeless population. This year's report says lingering pandemic effects also "artificially reduced" 2022's homeless count.
It's tough to say then how much the rise in homelessness is attributable to expiring funding and how much is a result of a more comprehensive survey being completed in 2023.
Reason has covered how much local zoning restrictions hamper even purely private efforts to provide shelter and services to the homeless during the pandemic.
Florida's Zoning Reform Sleeper Hit
When Florida Gov. Ron DeSantis signed the Live Local Act in March 2023, he praised the law's tax credits for low-income housing and mortgage subsidies for teachers and firefighters. He made no mention of the legislation's inclusion of what's turning out to be some pretty radical zoning reforms.
The Live Local Act allows developers to build housing in commercial, industrial, and mixed-use areas at the highest residential density allowed in the local jurisdiction. Provided the projects include the requisite amount of affordable housing, local governments have to approve these new developments.
The potentially huge density increases the law allows, mixed with what are turning out to be relatively modest affordability requirements, and an opportunity to skate around local anti-development politics are seeing developers rush to use the law.
"I have them in every major city—Tampa, Orlando, Miami—and we're in a mad dash to get them done," one Florida land use lawyer told The Wall Street Journal, saying he's working on 40 separate Live Local projects.
QUICK LINKS
- The company Praxis is the latest outfit getting into the utopian startup city space, with a plan to build a new community somewhere in the Mediterranean.
- This past week, the California Coastal Commission took a break from telling people to lop the tops of their houses off to hold a hearing on how to improve housing affordability on the coast.
- America is missing anywhere between 1.5 million and 20 million homes, reports Joseph Lawler, a policy editor at the Washington Examiner, who has a new piece out exploring differing estimates of the size of America's regulation-induced housing insufficiency.
- Persistently high housing costs could dog President Joe Biden's reelection chances, reports The New York Times.
- Dallas Mayor Eric Johnson said his city could increase housing supply and improve housing affordability by easing zoning restrictions on private development and speeding up permitting times. This year, Texas approved a new law allowing private approval of building permits.
- NIMBY ("not in my backyard") activists in Alexandria, Virginia, lost their fight to stop the city council from passing a modest suite of zoning reforms last month. They're now gearing up to fight the use of $1.3 billion in state and local subsidies to relocate the Caps and Wizards, currently in downtown D.C., to Alexandria. Perhaps the enemy of my enemy is my friend after all?
— Kevin ???? Glass (@KevinWGlass) December 15, 2023
- In a new The Hill op-ed, American Enterprise Institute scholar Tobias Peters argues New York City's Airbnb crackdown is all about scapegoating short-term rentals for affordability problems caused by the city's local zoning regulations.
Regulation of the Week
Washington, D.C., has only two licensed firearms dealers. The city's zoning code still finds it necessary to have minimum parking requirements for gun stores—1.33 spaces for every 1,000 square feet of floor space above 5,000 square feet.
*CORRECTION: The original version of this article misidentified the Austin Politics Newsletter's distributor.
