City Responds to Harrington Letter Questioning Nishi Affordable Housing Program

Over the weekend, the Vanguard published a letter from former City Councilmember Michael Harrington, who asked why he could not have separate rates for student housing versus other renters, but the city could pass the Nishi affordable housing plan with a 5-0 vote.

He writes, “This question is not anti-student or anti-student affordable housing.   It’s a basic fair housing question.”

He then asks, “Is there some sort of legal opinion in the public record where the City justifies this restriction on the 15% benefit to students?  If so, may I have a copy?”

http://www.davisvanguard.org/2018/03/letter-city-affordable-housing-program/

The city responded stating, “In consultation with City legal counsel, we provide this response to your e-mail of March 30, 2018.”

In his response, Mr. Webb stated that “limiting housing to students does not, on its face, violate state or federal fair housing laws.  Both state and federal fair housing laws protect prospective renters and purchasers of housing based on specifically listed protected status.”

He added, “Non-students are not a protected class of renters under state or federal fair housing laws, and therefore limiting housing to students does not constitute a fair housing violation.”

One of the city goals is to increase “affordable housing options for students.”  The Nishi development agreement establishes Baseline Project Features and provisions for affordable housing.

The original plan was to provide 264 of the estimated 2200 beds beds to extremely-low and very-low income residents within double-up bedrooms integrated into the overall development.

At the February meeting, the council discussing the plan increased the number to 330, with 110 in the extremely low category and 220 at the very low category.

The council asked Aaron Latta to come forward to provide a student perspective.  He said, “At the bottom line, any level of affordability for students is a good thing.  This is the second project that exists that has it.”

He pointed out, “Every single one of these numbers are people, but if we don’t get this project passed, it’s that many more people without an affordable place to live.”  He added, “I think the students would be willing to take a little fewer of the very very low affordable housing units and take more of the very low affordable housing units.”

“The Affordable Beds will be made available to full-time students,” the staff report states.  “Both financially dependent full-time students and financially independent full-time students will be eligible for the program…”

In his letter, Mike  Webb points out, “The Nishi developers will have to ensure that the implementation of their affordable housing program will not result in a disparate impact on any protected class of people, as do all providers of student housing, including universities.”  He added, “The Nishi developer has committed as part of the entitlements to comply with all applicable fair housing laws in implementing the affordable housing program.”

Michael Harrington writes, “I am truly puzzled by the city and Nishi’s action on the 15% set aside.”  He argues, “I think any adult human being with lower income should be able to apply for that 15%?  It’s private land, and governed by state and federal fair housing laws.”

Mr. Webb  responds, “While you are entitled to that perspective, the City Council does have the discretion to approve affordable housing for specific segments of the population where there is a particular need.”

He continues: “The City Council received extensive public testimony in connection with both the Lincoln 40 and the Nishi development projects regarding the struggles that college students face in securing housing in Davis.  These challenges are especially acute for lower income students, who will struggle to afford market rents in Davis, and are not eligible for most of the City’s other affordable units.”

As the Vanguard has pointed out previously: “Full time students that are single and do not have dependent children are generally not eligible for Section 8 rental assistance or any affordable housing projects assisted under the federal low income housing tax credit program, and students that are dependents of their parents cannot meet the eligibility requirements established for the vast majority of the City’s existing affordable housing units.”

He continued, “The only City assisted affordable housing development that currently provides units intended for students is the Pacifico Student Cooperative Housing development in South Davis.  Based on the request of the developer and the supporting testimony received in connection with the Nishi development, the Council approved the Nishi development’s student focused affordable housing program.

“The vast majority of affordable developments in the City continue to be available for non-students, including the 62 unit Bartlett Commons affordable housing development recently constructed in the Cannery subdivision, and the anticipated 38 unit affordable development that was approved in connection with the Sterling Apartment development at 2100 5th Street.”

In response, Mr. Harrington asks, “I notice that much of the authority is from outside of the US Circuit Court of Appeals for our jurisdiction, the 9th Circuit.  Do you have any supporting citations to binding state and federal case law in this jurisdiction?”

In a separate email response: “Another issue I have is the citation to cases involving public entity housing, rather than a purely private development such as Nishi.  We all know that UCD has far, far more latitude with selecting residents in its public housing.  So the City’s analysis should be limited to analogous situations.”

He continues: “But I just want you to know that I’m still stuck on the main issue:   by the City’s analysis, any private landlord in Davis is free to rent ONLY TO STUDENTS, or ONLY TO NON-STUDENTS.   In my years as a property owner, and a member of the CC, I have never heard or heard of ANYONE taking that position who has private housing.    The City itself cannot do that … only UCD.    So something does not add up here …”

Read the full response here: City Affordable Housing Response to Harrington

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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29 Comments

  1. Craig Ross

    “This question is not anti-student or anti-student affordable housing.   It’s a basic fair housing question.”

    Hogwash.  The no on Nishi crowd is attacking student affordable housing.  We can’t let them get away with that.

    Look at this statement from the No on Nishi ballot argument:

    “The proposed “affordable housing” program is exclusionary, intended only for students, and to be implemented by the landlord.  This is contrary to the city’s long-standing affordable housing policies.”

    The intention is clear.  Students can’t qualify for affordable housing.  So the city’s long-standing affordable housing policies are exclusionary.

    But Harrington, who is himself a landlord, doesn’t care about student affordable housing.  He is trying to kill this project and keep students from $400 and $500 a month rental options.

      1. Howard P

        The no on Nishi crowd is attacking student affordable housing.
        Look at this statement from the No on Nishi ballot argument:
        “The proposed “affordable housing” program is exclusionary, intended only for students, and to be implemented by the landlord.  This is contrary to the city’s long-standing affordable housing policies.”
        The intention is clear.  Students can’t qualify for affordable housing.  So the city’s long-standing affordable housing policies are exclusionary.
        But Harrington, who is himself a landlord, doesn’t care about student affordable housing.  He is trying to kill this project and keep students from $400 and $500 a month rental options.

        HTNOTH = Hitting The Nail On The Head… as with a hammer… also known as an inertial impact tool… will try to word things at a simpler level, in the future…

        Mistakenly thought that cognant folk would get it…

  2. Ron

    “So the city’s long-standing affordable housing policies are exclusionary.”

    I’m not sure why this type of statement is allowed to stand, without David or someone else addressing it. I’m pretty sure that David knows enough to provide a more accurate picture.

    In general, it seems like folks are a lot more interested in attacking the messenger, vs. actually addressing the issue. The usual personal attacks, apparently allowed on this site.

    Again (as already noted), the city is apparently required to exclude students, when using funds from non-city government sources for Affordable housing.  Presumably, this is because students are “temporarily/voluntarily” low-income, and receive other sources of government subsidies to attend college.  (Including the cost of the education, itself. Except for non-resident students, who are subject to full tuition costs.)

    Conversely, non-students are prohibited from renting campus housing.

    I’m wondering what might happen when a non-student (from a protected class) attempts to qualify for Affordable housing, at Nishi (if it passes). The development would be in the city, not on campus.

     

    1. Ken A

      I’m NOT wondering what might happen when a non-student (from a protected class) attempts to qualify for Affordable housing, at Nishi (if it passes).

      They won’t qualify for Affordable housing (just like when a STUDENT (even from a protected class) attempts to qualify for Affordable housing, in the city of Davis (under current rules).

      1. Ron

        Ken:  I’m not sure that it’s that simple.  Again, the city was originally/apparently following rules made by other government agencies, who provided the funding upon which the city’s rules were apparently based.

        This is something different. I’m not going to offer any opinion, regarding legality. But, I wouldn’t be surprised if other non-lawyers ventured into that territory. (Perhaps some of the same folks who are also “air quality” and “fiscal” blogging experts.) 🙂

    2. David Greenwald

      “Again (as already noted), the city is apparently required to exclude students, when using funds from non-city government sources.  ”

      The city is not required to exclude students…  First of all, the city is not the agency that makes the determination as to who qualifies and who doesn’t in an affordable housing project.  Second, students are excluded for affordable housing because they don’t meet the qualifications, not because they are specifically excluded.

      1. Ron

        Well, if the city doesn’t make the decision, then why are city policies even being discussed? (Except for the proposal at Nishi and similar developments, where the city apparently has gotten involved?)

        Also, you’re stating that students CAN qualify for (existing) Affordable housing, if they meet the qualifications?  That seems to be the opposite of what’s been stated.

        If students CAN qualify for existing Affordable housing in the city, then why would non-students be prohibited from Affordable housing at Nishi (if it passes)?

        In any case, I’m not sure why you’ve refrained from providing a more accurate picture, instead of just witnessing and allowing personal attacks.

        1. David Greenwald

          City’s play a role in approving affordable housing projects, but they are not generally the regulatory agency that makes the decision as to who specifically qualifies.  HCD is responsible for enforcement, not the city.

           

        2. Ron

          Who would be the “regulatory agency” (and responsible for program implementation, enforcement, and related costs) at Nishi? If it’s the owner, would there be any regulatory agency oversight? Or, would it be essentially an “honor system”, unless someone complained?

          Also, might this situation expose the city to any risk, since they apparently/essentially “approved” the program? (Or, did another government agency “approve” it?)

    3. Don Shor

      Ron:

      I’m wondering what might happen when a non-student (from a protected class) attempts to qualify

      They won’t qualify.

      1. Structure of Program
      Developer intends to lease individual beds within the Nishi Multifamily Units, with the project
      marketed primarily to students. The 700 multifamily units are anticipated to include
      approximately 2,200 total beds. A minimum of 330 total beds (the “Affordable Beds”) within
      the Nishi Multifamily Units shall be designated as affordable beds pursuant to this Affordable
      Housing Plan, with 220 beds rented to very low income students and members of their household
      (“Very-Low Income Beds”), and 110 beds rented to extremely low income students (“Extremely
      Low Income Beds”). There will be no distinction made between the Affordable Beds and beds
      rented at market rate, except that market beds may in one-bed bedrooms while all Affordable
      Beds are anticipated to have two beds per bedroom. Renters of the Affordable Beds will enjoy
      the same amenities and living experience as all other residents in the project. Affordable Beds
      shall be disbursed throughout the Nishi Student Living Project. Management staff employed by
      the owner of the Nishi Multifamily Units will administer both eligibility and suitability of
      residents and matches, subject to oversight by the City.
      2. Qualification for Affordable Beds
      The Affordable Beds will be made available to full-time students. To qualify to lease a VeryLow
      Income Bed, a full-time student must demonstrate that he or she is a member of a household
      whose annual income does not exceed a very-low income household income, adjusted for
      household size, as determined by the California Department of Housing and Community
      Development (“HCD”) on an annual basis pursuant to California Code of Regulations Title 25,
      Section 6932 (“Very-Low Income”). To qualify to lease an Extremely Low Income Bed, a fulltime
      student must demonstrate that he or she is a member of a household whose annual income
      does not exceed the annual income for an extremely low income household, adjusted for
      household size, as determined by HCD on an annual basis pursuant to California Code of
      Regulations Title 25, Section 6932 (“Extremely Low Income”). Students that participate in the
      program must also prove their full-time status with a schedule from any community college or
      four-year college or university. Full-time status will be reviewed at the execution of each lease,
      and subsequently on an annual basis prior to entering into a new lease or lease extension.

  3. Ron

    I’m wondering what might happen when a non-student (from a protected class) attempts to qualify

     

    Don:  “They won’t qualify.”

    Essentially my point.
     

      1. Ron

        Well, I’m wondering if someone with more legal knowledge than I have would question the legality of that.  (Not to mention “fairness”.  Again, non-students are already prohibited from renting on-campus housing. And, are appropriately not eligible for subsidized education, or related grants and loans.)

        If a non-student from a protected class wants to rent at Nishi, why should they be prohibited from doing so? (And really, why should any non-student be prohibited from doing so?)

        1. Ron

          Well, he might have a point.  And yet, every time he submits a letter to the Vanguard, commenters seem to “pile on”, and misrepresent the point being made. And, it’s allowed to stand. (Which sometimes compels me to point it out.)

        2. Ron

          Don:  I assume that “senior” housing legality has already been addressed somewhere.

          I’m not going to address or defend it, regarding fairness.

        3. David Greenwald

          Here’s an interesting question – you presume senior housing legality has been address, but you presume somehow that the city would allow Nishi to go forward (and lincoln40 to be approved) without being convinced the same for student affordable housing?  It’s not like the city had to go forward with this model.  Lincoln40 came before the Social Services commission back in December, they had at least one month to vet the proposal before it came there, why would they allow something of questionable legality to come forward if they had other options?

  4. Sharla C.

    “market beds may in one-bed bedrooms while all Affordable Beds are anticipated to have two beds per bedroom.”

    Just who are the non-UCD student renters that Harrington proposes to have share a bedroom with a student?

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