☆ CA'n “right to housing” constitutional amendment criticized as vague, risky, ostentatious
If State legislature is good at one thing, it's enshrining new liberties into our constitution that residents find puzzling, polarizing, and even downright paradoxical. Their latest proposed addition (ACA 10) establishes a "fundamental human right" to housing. Opp Now sat down with a local real estate expert, housing provider, researcher, and urban policy analyst to parse ACA 10 for the Bay Area's housing market. A variety of exclusive perspectives below.
Michael (Mike) Angles, West Valley College Business and Real Estate Professor:
In my opinion, the ACA-10 does nothing to solve or advance solutions for California’s homelessness crisis. It is merely a political foundation from which future actions may be justified. That is, people will use it as a springboard to advance their own agenda.
California’s current homelessness issues have been 30-plus years in the making. Unfortunately, there are many reasons. I will acknowledge the billions being spent are helping in the short-term. But I don’t see economic long-term solutions without unpopular structural changes to our tax system and city hall politics. And even with said changes, it will be a slow recovery process.
Our housing shortage, a.k.a. our lack of affordable housing, is of our own making because of our economic prosperity, wealth, and unwillingness for change. Our wealth enabled many (myself included) to purchase second homes and RE-investment properties. And our tax code incentivizes such investment. First-time home buyers are unable to compete with RE-investors, as investors use the potential rental income plus their own wealth to service their mortgage payment. Assuming they leverage the purchase, that provides a cash flow cascade to leverage into additional investment, creating greater wealth.
Investors can afford to overpay, because in the long term, their returns exceed other investment opportunities. And many RE-investors will never pay capital gains nor recaptured depreciation tax allowances, as all is forgiven when assets transfer to heirs. Hence, real estate is the greatest multi-generation wealth creation investment ever.
Dean Hotop, San Jose Housing Provider:
I am all for ACA-10.
Why? When voters amend the constitution and declare a specific right, it puts government, at all levels, on notice that it may not infringe on that specific right.
For example, we enjoy a right to free speech. This right allows me to type and publish, or speak, the following sentence: “Democrats have absolutely ruined the once great state of California.”
If the government were to declare or pass a law prohibiting anyone from speaking ill of the sole party in control of all levels of government up and down the state, that would clearly infringe on my right to free speech.
Now, if everyone has a constitutional right to housing, then the government can take no action, or pass any laws, regulations/rules, etc., that infringes on that right.
For example, government actions which make it increasingly difficult and expensive to build adequate quantities of new housing stock in California, to meet the ever-growing demand for new housing units, would certainly seem to infringe on that constitutional right to housing. We have been living this for decades in California. It is government action that limits the feasible development and availability of housing units.
Now, to dig a little deeper into ACA-10, let’s look at what it actually says (and doesn’t say):
Article XXV Right to Housing
SECTION 1.
The state hereby recognizes the fundamental human right to adequate housing for everyone in California. It is the shared obligation of state and local jurisdictions to respect, protect, and fulfill this right, on a non-discriminatory and equitable basis, with a view to progressively achieve the full realization of the right, by all appropriate means, including the adoption and amendment of legislative measures, to the maximum of available resources.
So, we’ll have a right to “adequate” housing. Adequate by what, or whose, standard? Here’s how Merriam-Webster defines “adequate”:
sufficient for a specific need or requirement
also : good enough : of a quality that is good or acceptable
of a quality that is acceptable but not better than acceptable
Hmm, that’s a wide open standard. Beauty is in the eye of the beholder. Good enough for thee, but not for me.
Now, what ACA-10 doesn’t say is “regardless of means.” So, I have to ask: Is that implied, assumed, or purposefully omitted? If its implied or assumed, does this mean for anyone with a heartbeat, that someone else (taxpayers?) will provide you with housing — OR — is it purposefully omitted to mean that if you have the means, government will not stand in the way of you acquiring the housing that is simply good enough to meet your needs?
If it’s the latter, then it's time to start rolling back all the regulations that drive up housing supply costs, create shortages, and ultimately stand in the way of individuals acquiring housing that meets their needs.
Lastly, if we’re going to start declaring constitutional rights to individual needs, I’ve got a long list…
John D. Landis, University of Pennsylvania City & Regional Planning Professor Emeritus, California Housing Policy Researcher:
Although I think housing is a matter of legitimate government concern and favor the government doing more to fund affordable housing, I generally do not favor putting private consumption choices (e.g., housing nutrition, health care) in state (or national) constitutions unless there is strong and unified support for spending the huge sums necessary to deliver on such commitments.
Most of the rights in the Bill of Rights and other state constitutions are relatively inexpensive to guarantee. Housing is not; so before such amendments are enacted into law, however well intended, they need the support of a sizable majority of citizens across all economic and political spectrums.
Scott Beyer, Market Urbanism Report Owner, Urban Policy Analyst:
Calling something a “human right” is meaningless without a plan to provide it. And when it comes to housing in California, no such plan exists.
ACA 10 declares a fundamental right to housing for all Californians, making it “the shared obligation of state and local jurisdictions to respect, protect, and fulfill this right.” It's the latest acknowledgement that local-level rules contribute to the housing crisis.
But the bill misses by promoting a “right” to housing rather than tangible steps to produce housing, such as upzoning or CEQA reform. If anything, ACA 10 goes the wrong way; a WCLP fact sheet writes that “state and local governments can use a wide variety of measures to implement the right, including tenant protections, market regulations, public housing, housing subsidies, and progressive tax policy.” As I’ve written for Opportunity Now, these are the very pro-tax and -regulatory policies that discourage construction to begin with.
Establishing this constitutional right could also have unintended consequences. The stipulation that housing be provided on an “equitable basis” is opaque, possibly leading to market-distorting measures like rent control and inclusionary zoning that “feel” good but increase costs.
California's done a decent job of passing statewide reforms, like SB 9, that counter local Nimbyism, and should continue this liberalization trend. ACA 10, by contrast, is mere rhetoric.
Read more exclusive local perspectives on ACA 10 here and here.
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