Proposed Initiative Would Permit Roll Back of Land Use Laws Promoting Housing (November 2021)

by Bill Speir, LWVDV Housing and Land Use observer

In response to legislation adopted in the past few years to respond to the housing crisis, an initiative has been prepared and submitted to the Attorney General which would permit cities and counties to override state land use and planning laws which are not popular with local residents.  (California Initiative 21-0016 Amendment 1.)  The primary push for the initiative appears to come from upscale suburban communities who feel threatened by laws promoting housing, most recently SB 9, which permits two homes to be built on single family zoned lots, and permits lot splits in most circumstances.  The League of Women Voters of California supported SB 9.

The California Attorney General states that the Initiative:

PROVIDES THAT LOCAL LAND-USE AND ZONING LAWS OVERRIDE CONFLICTING STATE LAWS. INITIATIVE CONSTITUTIONAL AMENDMENT. Provides that city and county land-use and zoning laws (including local housing laws) override all conflicting state laws, except in certain circumstances related to three areas of statewide concern: (1) the California Coastal Act of 1976; (2) siting of power plants; or (3) development of water, communication, or transportation infrastructure projects. Prevents state legislature and local legislative bodies from passing laws invalidating voter-approved local land-use or zoning initiatives. Prohibits state from changing, granting, or denying funding to local governments based on their implementation of this measure. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: Fiscal effects of the measure depend on future decisions by the cities and counties and therefore are unknown. (21-0016A1.)

Residents of many communities in the Diablo Valley area have expressed interest in the Initiative.  Council member Jovita Mendoza of Brentwood is one of the sponsors of the Initiative.  Mayor Susan Candell of Lafayette, another local supporter, placed an item on the agenda of the November 8, 2021 Lafayette City Council meeting seeking adoption of a resolution of support for the Initiative.  Mayor Candell’s memorandum supporting the Initiative incorrectly stated:

This Constitutional Amendment will simply un-do the 80+ housing bills that have been passed since 2017 under emergency powers, including the recent SB9 and SB10, the bills that eliminate single family zoning, as well as bills like AB2923 that force the up-zoning of Lafayette’s BART parking lots.

Rolling back recent efforts to promote increased housing stock and more equitable housing distribution throughout the state would exacerbate the housing crises.  The Initiative would permit cities to use planning and zoning rules to limit or avoid adding multi-family housing.  But the proposed constitutional amendment would permit cities to do much more than that, and the ramifications would hardly be simple.  It would allow communities to override state planning and zoning laws in almost all respects.  It would make an already complex land use permitting process even more byzantine.  Virtually every community would have its own rules and requirements.  Adding more complexity to the land use planning process would increase development costs, and therefore exacerbate an already difficult environment for any real estate development. 

The proponents of the Initiative have 180 days to gather approximately 1.3 million signatures to qualify the measure for the ballot.  The California League will no doubt take a position on the Initiative if it qualifies for the ballot, but until then, please know that the Initiative, if successful, would not simply un-do recent housing legislation.

See: 21-0016 (Local Land Use)

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ABAG releases draft Regional Housing Needs Allocations (May 2021)

by Bill Speir, LWVDV Housing and Land Use Observer

Since 1969, the State of California has required each local government to plan for its share of the state’s housing needs. Every eight years, cities and counties in the Bay Area are required to revise the Housing Elements of their General Plans to plan for housing, including affordable housing, that the State Department of Housing and Community Development (HCD) determines will be needed to accommodate regional population. The Regional Housing Needs Allocation (RHNA) process identifies the total number of housing units, separated into four affordability levels, that every local government in the Bay Area must plan to accommodate. The sixth cycle of this process is ongoing now, planning for growth from 2023 to 2031. 

In December 2020 the Association of Bay Area Governments (ABAG) adopted a methodology to distribute the Bay Area regional housing need of 441,176 units, as established by HCD.  On May 25, 2021 ABAG released its draft RHNA plan distributing the regional housing needs among communities in the Bay Area.  (See link, below.)  The RHNA for communities in Contra Costa County are:

The total regional need established by HCD for the ongoing sixth cycle (441,176 units) was more than double the determined need for the fifth cycle (189,000 units), resulting in much larger RHNA amounts than were previously required.  The higher regional number anticipated growth as well as the existing housing shortfall that has resulted in skyrocketing housing prices and exacerbated a homelessness crisis throughout the region.  The methodology for distributing the housing needs to cities considered, among other factors, strategies included in Plan Bay Area 2050 to focus growth near transit and high opportunity areas.  As a result, in the Diablo Valley area, higher income communities near a BART station were asked to grow faster than other communities.  For example, the RHNA requires more growth, compared to 2020 population, in Lafayette (22%), Orinda (20%) and Walnut Creek (18%), than in Martinez (9%), Pittsburg (9%) and Antioch (9%). (See Draft RHNA Plan, figure 2, p. 28).  Work on the RHNA methodology began in 2019, and thus did not consider potential impact of COVID-19 on housing, transit, or jobs.

Cities and counties may appeal the RHNA, but only on very specific and narrow statutory grounds.  Appeals will be considered in summer and fall, 2021.  The ABAG Executive Board will conduct a public hearing in December 2021, and approve final allocations.  Revised Housing Elements from each city and county must be submitted to HCD by January 2023.

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New Plan Bay Area 2050 includes increased housing goals for local cities

by Bill Speir, LWVDV Housing and Land Use observer

In September, 2020, the final blueprint for Plan Bay Area 2050 was approved. As required by State law, it is a long-range plan developed by the Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG) to guide growth of the nine Bay Area counties from 2023 - 2031. It is, in essence, a regional general plan that recognizes the interdependent relationship among the counties and cities of the Bay Area. It focuses on transportation, housing, the environment and the economy. The plan encourages a coordinated public transportation system and includes strategies to reduce traffic and greenhouse gas emissions. It also addresses the need for new housing, especially near transportation and job centers.

Of great significance to local communities, Plan Bay Area 2050 includes housing goals in the form of a Regional Housing Needs Allocation (RHNA) that each city in the region is required to incorporate into its General Plan. The RHNA includes the number of housing units, including affordable housing, which each city and county must plan for and permit to be built. Affordable housing is allocated among potential residents with very low, low and moderate incomes. The low-income categories are based on a percentage of median income for the area.

The process of setting the RHNA amounts is established by State law. The State Department of Housing and Community Development first identifies the total number of housing units, for all income levels, that will be needed during the eight-year life of the Plan. The local association of governments, ABAG in the Bay Area, then establishes a methodology for distribution of that housing within its region. The ABAG Board of Directors has approved the methodology for setting RHNA in the Bay Area and the methodology has been released for comment. Public comments will be considered by the ABAG Board on December 17, 2020. The final step in determining the RHNA is to apply the approved methodology to the total housing need, and allocate housing to each city in the region.

Based on the current status of the Plan, the RHNA allocations that would come out of the approved methodology are much higher than in prior years, causing concern among local communities. The total housing need determined by the State for the nine-county Bay Area region is 441,176 housing units, more than double the requirement of the previous RHNA calculations.  The ABAG methodology for allocation among cities focuses on increasing density, encouraging infill development, developing transportation corridors, and requiring higher income areas to plan for more affordable housing. 

The increased housing requirements pose a challenge for many suburban communities. Some cities have stated the intent to investigate and potentially protest the RHNA numbers, based on a concern that the overall housing need as calculated by the Department of Housing and Community Development is flawed.  However, there is no doubt that the State in general, and the Bay Area in particular, is in the midst of a serious housing shortage, and even if the numbers are adjusted, each community will need to plan for significant additions to local housing.

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San Ramon approves plan for large multifamily development at Bishop Ranch

On September 8, 2020, the City of San Ramon City Council rejected an appeal and approved the potentially massive CityWalk Master Plan.  The project is located within the large Bishop Ranch Business Park, east of Interstate 680 at Bollinger Canyon Road in San Ramon.  It is adjacent to the Iron Horse Trail and the city’s Central Park.  The Master Plan will guide future development of this area of the city.  It permits development of up to 4,500 multi-family dwelling units over the next 25 years. 

Most of the units will be one- and two-bedroom apartments or condominiums built on what is now surface parking.  The intent is to create a walkable environment, with jobs, housing and retail in close proximity in a relatively dense suburban development.  Fifteen percent of the units will be deed restricted as affordable to low and very low-income households, which ideally would accommodate lower income workers in the office park and related retail businesses.  The plan also contemplates a 169-room hotel, 169,000 square feet of new commercial development and three new parking structures.

The plan is not a commitment by the owner or developer to build all of these homes, but the Master Plan, along with the Vesting Tentative Subdivision Map approved at the same time, is an important and substantial step in the development process. 

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Housing Accountability Act compels City of Lafayette to approve controversial affordable housing project 

by Bill Speir, LWVDV Observer

On August 24, 2020, after over nine years of analysis, litigation and a referendum, the City of Lafayette approved the Terraces apartment complex.  The 315-apartment project, on 22 acres at Deer Hill Road and Pleasant Hill Road, just north of Highway 24, had been controversial.  The final decision to approve the project came after two marathon City Council meetings and hundreds of public comments, most of which opposed the project.

The project was originally proposed in 2011 as 315 moderate-income, affordable apartments.  When the original application was filed, residents in the vicinity protested. Opposition to the project quickly formed, especially among City residents on the north side of the freeway who were most impacted by the existing traffic problems.  During rush hour, traffic on Pleasant Hill Road north of Highway 24 is extremely heavy, sometimes virtually gridlocked.  A 44-house compromise proposal was rejected through referendum in 2018, and the developer revived processing of the original application, with some modifications.

The project may not have been approved if not for the Housing Accountability Act (“HAA”; Government Code section 65589.5).  In response to the housing crisis, and the lack of affordable housing, the HAA was amended in 2018 to make it more difficult for cities to reject unpopular affordable housing projects.  Many cities had opposed the amendments to the HAA as constituting an unwarranted interference with the historically local process of regulating land use and housing development.  In considering the HAA amendments, the legislature recognized that the lack of housing, and in particular, affordable housing, is a “critical problem” and an issue of statewide concern.  (See Government Code section 65589.5(a).) 

The HAA generally preempts conflicting goals and policies of the General Plan and requirements of the Municipal Code when a city is considering a qualified affordable housing project.  To avoid the strictures of the HAA, the city would have to make specific findings that the proposed project would have a severe, adverse impact on public health and safety, and the city would have the burden of proving those findings by a preponderance of evidence should litigation be filed.   A city could face large fines and be required to pay the opponent’s attorney’s fees should the city lose such litigation.

City of Lafayette staff concluded that although the Terraces project did not meet all the requirements of the Municipal Code, the City could not make the findings necessary under the HAA to deny the project. City staff therefore recommended that the application be approved, with conditions, and the City Council ultimately accepted that recommendation.  The approval of the Terraces project is an example of the law working as the legislature intended.

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