Two bills that would alter the housing element process are speeding through the Legislature. The bills address the regional housing needs allocation process, land inventories, and by-right development.

Neither piece of legislation, however, tackles the sticky issues of enforcement and production.

The bills are the product of the Housing Element Working Group, which has been meeting regularly for a year. The group has representatives from the Department of Housing and Community Development (HCD), cities, counties, councils of government (COGs), planning departments, the for-profit and nonprofit housing development industry, housing advocacy groups and business.

“It’s a very different discussion to have,” said Citrus Heights Community Development Director Janet Ruggiero, a veteran of three previous efforts to reform housing element law. “The lobbyists were not at the table. There were practicing planners and professionals, people who work in nonprofit housing, the legal advocates.”

The working group identified six priority issues:

• Performance-based certification of housing elements.

• Reform of the regional housing needs allocation (RHNA) process.

• Housing element enforcement.

• Clarification of provisions for land inventories and adequate building sites.

• By-right development.

• HCD’s review process.

Three of the six priorities are addressed in AB 2158 (Lowenthal) and AB 2348 (Mullin). A fourth — self-certification — is the subject of AB 2980 (Salinas), but that bill lacks the endorsement of the working group. As of mid-May, AB 2980 was stalled because of the lack of consensus.

The Lownethal and Mullin bills not only reflect the working group’s consensus, they have yet to receive a single no vote at the state Capitol. The Assembly unanimously approved AB 2158, which overhauls the RHNA process. Three Assembly committees passed AB 2348, which appeared headed for easy approval on the Assembly floor.

The RHNA overhauls are intended to make the process more understandable and to give local entities a greater say. During past rounds of housing element updates, COGs have complained about HCD’s allocation numbers, while cities and counties have griped about both their COG and HCD numbers. Under AB 2158, HCD could no longer rely solely on Department of Finance population projections in allocating housing needs. Instead, HCD would use DOF figures, regional forecasts that are part of regional transportation plans, and input from COGs. Once a COG receives its figure from HCD, the COG would have to consider a number of new factors before handing out numbers to cities and counties, such as a jurisdiction’s jobs-housing ratio, infrastructure, land availability, protected farmland, market demands, and farmworker housing demand. A COG, however, could not reduce a jurisdiction’s housing target based on a local policy or voter-approved measure that directly or indirectly limits residential construction.

The bill also lets cities and counties trade units more easily — a concession to efficient use of resources and the fact that counties often do not have the ability or accommodate large-scale residential development. The bill additionally lets housing element updates coincide with regular updates to regional transportation plans, a desire of COGs.

The changes would make the RHNA process more complicated for COGs, said Alex Amoroso, who oversees the RHNA process for the Association of Bay Area Governments. But the methods and factors behind the numbers will be easier for everyone to understand, said Amoroso, a working group member. Plus, the bill encourages greater cooperation at the sub-regional level, which Amoroso thinks is good.

Assembly Bill 2348 attempts to bring clarity to the issues of land inventory, adequate sites and by-right development. The housing element law revisions in AB 2348 let local governments know up front what they need to do to satisfy HCD, said Ruggiero.

This clarification comes by way of new definitions and understandings amongst all the participants. For example, the bill defines the term “land suitable for residential development” to mean vacant sites zoned residential, vacant sites zoned non-residential but still permitting housing, developed residential lands that could accommodate higher densities, and nonresidential sites that could be redeveloped with housing.

One provision in AB 2348 creates a “voluntary rule of thumb” that encourages local governments to establish minimum densities to promote efficient development and preserve natural resources. HCD would have to accept these densities as an appropriate way for a jurisdiction to accommodate its share of low-income housing.

The existing law’s provision for by-right development would be strengthened by prohibiting local governments from requiring discretionary approvals (except for design review) for development that is consistent with existing zoning. This provision would apply only to jurisdictions that do not identify adequate sites for new low- and very low-income housing.

Additionally, under AB 2348, a city or county could not reject a project on the grounds that it would cause a disproportionate concentration of lower-income households.

Working group members continue to negotiate over the issue of enforcement. “What we really are trying to focus on is the people who are bad actors,” Ruggiero.

But bad actors turn out to be sort of like pornography: You know them when you see them, but they are hard to define.

“There’s an obvious need for enforcement at some level because there are communities out there that don’t want to produce,” Amoroso said. “But how do you determine that somebody is a nonproducer? I don’t think you can set a threshold for production without looking at why the production doesn’t occur.”

Even if new enforcement policies do not make it into a bill this year, at least some of the polarization over housing has deceased this year, potentially increasing the chances for broader reform in the near future.