By David M. Greenwald
Davis, CA – Two weeks ago we learned that HCD (Department of Housing and Community Development) did not approve the City of Davis’ Housing Element.
The city has kind of shrugged it off, noting as Ashley Feeney did that “many cities usually receive these types of letters.”
Many of the changes appear to be technical—but not all.
HCD is asking, for example, the city to justify counting 105 units of Affordable housing at Nishi toward their lower-income housing requirement.
“To credit the 105 units toward the RHNA, the City must verify that the Nishi project meets the census definition of a housing unit and is not considered group quarters,” HCD writes.
Further, “while the element outlines the methodology behind converting deed-restricted affordable beds into units, it must also demonstrate that renters, particularly nonindependent student renters, qualify for the deed-restricted leases.”
Even more ominously, HCD points out, “The revised element identifies a shortfall of adequate sites to accommodate the regional housing need for lower-income households. It also identifies candidate sites that will be rezoned within the first three years of the planning period.”
However, “sites include a capacity assumption of 100 percent build out. The element must support the capacity methodology assumed for these sites…”
The city has acknowledged, “The City does not currently contain enough vacant land appropriately zoned for the development of the housing necessary to meet the city’s estimated housing needs for the period 2021 and 2029.”
HCD expresses concern about the impact of Measure J and other growth control measures on the city’s ability to deliver on its housing needs.
“As recognized in the housing element, Measure J poses a constraint to the development of housing by requiring voter approval of any land use designation change from agricultural, open space, or urban reserve land use to an urban use designation,” HCD writes. “Since the ordinance was enacted in March of 2000, four of the six proposed rezones have failed.
“As the element has identified the need for rezoning to accommodate a shortfall of sites to accommodate the housing need, the element should clarify if any of the candidate sites to rezone would be subject to this measure and provide analysis on the constraints that this measure might impose on the development of these sites.”
All of this is to say it is not clear that the city can justify that they have sufficient zoned land to accommodate their housing—particularly low-income housing—needs.
“As a reminder, the City’s 6th cycle housing element was due May 15, 2021. As of today, the City has not completed the housing element process for the 6th cycle,” the letter from HCD warned. “The City’s 5th cycle housing element no longer satisfies statutory requirements. HCD encourages the City to make revisions to the element as described herein, adopt, and submit to HCD to regain housing element compliance.”
What happens if they don’t?
As UC Davis Law Professor Chris Elmendorf points out, “While Davis is out of compliance, it can’t use its zoning code or general plan to reject a 20% low-income or 100%-moderate project.”
But he adds, “But any developer who’d try such a project faces a long, uncertain slog through the courts.”
Kevin Burke’s blog post also drew attention, “You Can Build a Skyscraper Anywhere in Davis Right Now.”
Burke points out: “So it’s legal right now to buy any lot in Davis and submit a proposal to build a skyscraper on it.”
He does make an interesting point: “You would need to meet Davis’s other rules—for example, if Davis has rules about parking or fire egress or whatever, you would have to abide by those. But any rules Davis had about density on a site would not apply. Crucially, Davis can’t change the rules after your application. As long as you submit it now, while their housing element is noncompliant, they have to be bound by the rules on the books now.”
He adds, “The problem is that big buildings are expensive and the law has never been tested. If you built it you’d be looking at a legal fight for about 4-5 years. I think you would have a good chance of winning—the California courts have in recent years swatted down local NIMBYism at Vallco Mall, in San Mateo and in Los Altos. But you would still have to go through the process.”
He adds, “Why hasn’t someone tested it? Because most developers are playing a repeated game with cities, housing applications have historically relied on a lot of goodwill to get through the planning process, and they haven’t wanted to upset the apple cart for one big and uncertain return. So there is room for a brash outsider who doesn’t care what people or planning staff in Davis think about them.”
You would probably need an out-of-town developer with deep pockets (for a lot of reasons) to wade into the risk involved in even proposing such a beast. That seems unlikely.
The bigger problem is the problem that we have identified from the start—where is Davis going to put the housing that it needs to build? There is no real good answer there and so far it has been the one question the city has seemingly dodged.