Monday Morning Thoughts: Encinitas Housing Case something That Bears Watching

Photo by Liz Sanchez-Vegas on Unsplash

By David M. Greenwald
Executive Editor

Oakland, CA – Last week the Attorney General Rob Bonta announced that he is going to hold the city of Encinas “accountable” for a denial of a permit for the Encinitas Boulevard Apartments if the city fails to take corrective action to approve a modified version of the project.

This is something we should be watching closely – how does the state handle rejected housing projects and how might it impact our community going forward?

According to Bonta’s office, in November of 2021, the city of Encinitas “blocked the development of a 277-unit housing project in a wealthy suburban neighborhood that had previously been identified as suitable for the development of lower-income housing and zoned accordingly. The proposed project would have included 41 units set aside for lower-income families and should have been approved under state housing laws that restrict local governments’ ability to deny permits for such projects.”

It would have set aside about 20 percent of its units for very low and low income housing.

In a letter to the city, “Based on our current understanding of the revised Project, it appears that approval of the revised Project would be in the best interests of Californians and consistent with the City’s obligations under State law.”

The AG continues, “We urge the City to take prompt action to consider and approve the revised Project if and when a new application is submitted. If the City fails to do so, the Attorney General is prepared to take immediate steps to hold the City accountable.”

The AG believes that the city violated the Housing Accountability Act and the Density Bonus Law when it rejected the project.

According to the AG, under the Housing Accountability Act, local agencies cannot disapprove housing development projects that comply “with applicable, objective planning, zoning, and subdivision standards and criteria, including design review standards, in effect at the time the application was deemed complete” absent public health or safety concerns.

Moreover, “if a local agency finds that a proposed housing development project is inconsistent with
applicable and objective standards and criteria, it must provide the applicant with written documentation to that effect.”

In this case, the city found the project was “inconsistent with certain development standards.  However, Density Bonus Law “compels local agencies to waive standards that preclude the development of qualifying projects.”

However, the only such exception invoked by the City was that granting the waivers “would be contrary to state or federal law.”

Here, the City contended that granting the waivers would be contrary to the Density Bonus Law itself. But the AG argues, “nothing in the Density Bonus Law requires the City to apply any development standards, and no good faith reading of that statute could support that reading.”

To the contrary, “because the Project qualifies for a density bonus, Petitioner is entitled to an unlimited number of waivers of development standards that would otherwise have the effect of physically precluding the development of the Project.”

For these reasons, the AG argues, “the City had no valid basis to deny the requested waivers under the Density Bonus Law.”

The AG believes that the city has violated its obligation under state law to affirmatively further fair housing.

Under Government Code section 8899.50, the City must affirmatively further fair housing, which means it must take “meaningful actions” to “address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”

Therefore, the City cannot take any action that is materially inconsistent with its obligation to “foster inclusive communities free from barriers that restrict access to opportunity based on” level of income.

AG Bonta warns that if the city “fails to approve this project” – AG Bonta will “promptly act to hold the city accountable.”

There are some real sticks here that cities should be paying attention to.

The AG notes, “Encinitas has not met its share of the regional housing need for either very low- or low-income households; the Project will not have a significant, adverse impact on health or safety, nor will it violate state or federal law; and the Project is consistent with both the zoning and the general plan land use designation.

“The City will have no discretion but to approve the Project as revised.”

But even more so is this: “HCD already notified the City that it violated the Housing Element Law when it disapproved the Project. If HCD finds that the City is no longer in substantial compliance with the Housing Element Law, then the City will not be able to disapprove any qualifying housing development project simply because of its inconsistency with either the City’s zoning or its general plan.”

How will this impact cities like Davis?  Davis at this time is out of compliance with HCD.  And what happens if voters reject projects in Davis through Measure J – will the state step in at some point?  That seems like a real risk at some point especially if the city falls short of its affordable housing requirements.

In November, Attorney General Bonta announced the creation of a Housing Strike Force within the California Department of Justice.  The AG’s office noted, “The Housing Strike Force is actively monitoring compliance with state housing laws, and recently sent letters notifying Woodside and Pasadena of violation of SB 9.”

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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15 Comments

  1. Ron Oertel

    How will this impact cities like Davis?

    It won’t.  Davis has been one of the most compliant cities in the state.

    Davis at this time is out of compliance with HCD.

    And why do you suppose that is?  Is it because the council decided to approve megadorms, despite being warned in advance that they wouldn’t fully count?  And now, is trying to have them fully-counted, anyway?

    And what happens if voters reject projects in Davis through Measure J – will the state step in at some point?

    If the council sets up a situation in which they offer-up agricultural land outside of city limits to meet RHNA requirements, SACOG won’t approve it – knowing that it’s not within the city’s ability to make that decision.  They’ve already warned against doing so.

    By the way, what does this tell you regarding HCD’s view of Davis being “responsible for” student housing?

    Regardless, the implication here is that every city along the coast will have to expand its boundaries to meet RHNA requirements.  And yet, there isn’t even one that is doing so.  Not one. The state does not consider land which is outside of city boundaries, nor is the goal to encourage sprawl.

    That seems like a real risk at some point especially if the city falls short of its affordable housing requirements.

    It’s a risk of approving DiSC, for sure – since it creates demand for 1,729 more housing units than it accommodates on site.  Say so, right in the EIR. This is absolutely something that HCD will consider, regarding future rounds of RHNA requirements.

     

    1. Keith Olson

      Also in light of the coming world food shortages that we’re all being warned about should we really be taking farmland permanently out of circulation?

      1. David Greenwald

        On the other hand, the 100 acres of land can be offset with research on food systems. UC Davis has some interesting research coming out as I shared last week that could make food systems far more productive on far less land.

        1. Keith Olson

          On the other hand, the 100 acres of land can be offset with research on food systems.

          Oh, can that happen David?  Notice how you didn’t say “will be offset”.

           

           

        2. Keith Olson

          UC Davis has some interesting research coming out as I shared last week that could make food systems far more productive on far less land.

          And then there’s that “could” word.

    2. Ron Oertel

      Correction:  DiSC creates a demand for 1,269 more housing units that won’t be accommodated onsite.  (I neglected to subtract-out the 460 onsite housing units from the 1,729 total new demand.)

      Good point, Keith – regarding farmland. So much for sprawl “saving the world”.

      I’d like to know what the impact on Davis’ water supply would be, as well – not just from DiSC, but from Shriner’s, Palomino Place, the space inside of Mace Curve, and of course – the “other half” of DiSC.

      Not to mention cumulative traffic impacts of all of these proposals, which haven’t been analyzed.

  2. Ron Oertel

    The AG believes that the city violated the Housing Accountability Act and the Density Bonus Law when it rejected the project.

    Actually, in reviewing this article (and skimming through others online), it appears that the situation in Encinitas has nothing to do with RHNA requirements.  I’m gathering (online) that Encinitas is not out of compliance at this point.

    And yet, still must approve this development, per the Attorney General – based upon other factors.

    I challenge anyone to show otherwise.

     

     

    1. Keith Y Echols

      Actually, in reviewing this article (and skimming through others online), it appears that the situation in Encinitas has nothing to do with RHNA requirements.  I’m gathering (online) that Encinitas is not out of compliance at this point.

      I think the issue is not with RHNA requirements as it appears you’re right; that Encinitas has an approved Housing Element.  

      The issue I believe is compliance with SB 35 (which I wrote about and was posted previously) and the ministerial approval process (if the project is multi-family, specific infill, required affordable units…etc… and is in compliance with the general plan; the project gets a rubber stamp of approval without anymore input….basically “anti-NIMBY” measures).

      This bill would authorize a development proponent to submit an application for a multifamily housing development, which satisfies specified planning objective standards, that is subject to a streamlined, ministerial approval process, as provided, and not subject to a conditional use permit. The bill would require a local government to notify the development proponent in writing if the local government determines that the development conflicts with any of those objective standards by a specified time; otherwise, the development is deemed to comply with those standards. The bill would limit the authority of a local government to impose parking standards or requirements on a streamlined development approved pursuant to these provisions, as provided. The bill would provide that if a local government approves a project pursuant to that process, that approval will not expire if that project includes investment in housing affordability, and would otherwise provide that the approval of a project expire automatically after 3 years, unless that project qualifies for a one-time, one-year extension of that approval. The bill would provide that approval pursuant to its provisions would remain valid for three years and remain valid thereafter so long as vertical construction of the development has begun and is in progress, and would authorize a discretionary one-year extension, as provided. The bill would prohibit a local government from adopting any requirement that applies to a project solely or partially on the basis that the project receives ministerial or streamlined approval pursuant to these provisions. The bill would repeal these provisions as of January 1, 2026.

      65913.4. (a) A development proponent may submit an application for a development that is subject to the streamlined, MINISTERIAL approval process provided by subdivision (b) and not subject to a conditional use permit if the development satisfies all of the following objective planning standards:
      (1) The development is a multifamily housing development that contains two or more residential units.
      (2) The development is located on a site that satisfies all of the following:
      (A) A site that is a legal parcel or parcels located in a city if, and only if, the city boundaries include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.
      (B) A site in which at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses. For the purposes of this section, parcels that are only separated by a street or highway shall be considered to be adjoined.
      (C) A site that is zoned for residential use or residential mixed-use development, or has a general plan designation that allows residential use or a mix of residential and nonresidential uses, with at least two-thirds of the square footage of the development designated for residential use.
      (3) If the development contains units that are subsidized, the development proponent already has recorded, or is required by law to record, a land use restriction for the following applicable minimum durations:
      (A) Fifty-five years for units that are rented.
      (B) Forty-five years for units that are owned.

      (3) If the development contains units that are subsidized, the development proponent already has recorded, or is required by law to record, a land use restriction for the following applicable minimum durations:
      (A) Fifty-five years for units that are rented.
      (B) Forty-five years for units that are owned.
      (4) The development satisfies both of the following:

      (A) Is located in a locality that the department has determined is subject to this subparagraph on the basis that the number of units that have been issued building permits is less than the locality’s share of the regional housing needs, by income category, for that reporting period. A locality shall remain eligible under this subparagraph until the department’s determination for the next reporting period. A locality shall be subject to this subparagraph if it has not submitted an annual housing element report to the department pursuant to paragraph (2) of subdivision
      (a) of Section 65400 for at least two consecutive years before the development submitted an application for approval under this section.

      (B) The development is subject to a requirement mandating a minimum percentage of below market rate housing based on one of the following:
      (i) The locality did not submit its latest production report to the department by the time period required by Section 65400, or that production report reflects that there were fewer units of above moderate-income housing approved than were required for the regional housing needs assessment cycle for that reporting period. In addition, if the project contains more than 10 units of housing, the project seeking approval dedicates a minimum of 10 percent of the total number of units to housing affordable to households making below 80 percent of the area median income. If the locality has adopted a local ordinance that requires that greater than 10 percent of the units be dedicated to housing affordable to households making below 80 percent of the area median income, that zoning ordinance applies.

  3. Don Shor

    I’d like to know what the impact on Davis’ water supply would be, as well – not just from DiSC, but from Shriner’s, Palomino Place, the space inside of Mace Curve, and of course – the “other half” of DiSC.

    City of Davis water supply comes from two current sources and another available unused source.

    Surface water from the Sacramento River is available most years and provides the majority of our water. When a “Shasta Critical” year is declared by the state, our surface water supply is reduced or stopped. At that point we revert to groundwater. That happened last year and will be the case again this year.

    The balance of our water in a normal year comes from deep-aquifer wells. There are 5 – 6, but my understanding is that only 4 are active. Those draw water from very deep aquifer(s) that are not directly recharged by current rainfall patterns. This means they are not subject to overdraft when pumping increases due to drought.

    Though the exact mechanism of recharge is not fully understood, the water is known to be older than WWII because it does not test positive for the Radium isotope that is found in water that passed through surface soil after atomic bombs were tested aboveground in the 1950s and 60s.  It may be lateral recharge from very broad aquifers of water that may even be prehistoric. But monitoring indicates that we are not over-pumping this source, particularly since it is the city’s backup and contributes only 10 – 30% of our water most years. UCD also uses this water.

    When the city went to the deep-aquifer water, it stopped using a couple of dozen shallower wells that are still functional. These are similar to what local farmers use. They draw from a few hundred feet, water which is directly recharged by rainfall. Those wells are available for use if there were to be an emergency with the deep aquifer wells combined with a cessation of surface water (an unlikely but not impossible situation).

    The quality of the water from those wells was posing a regulatory issue as the state tightens water quality standards. There was a risk of over-drafting those aquifers. Land subsidence was occurring in the Zamora region in Yolo County, probably due to overdrafting by the cities of Woodland (which has no deep-aquifer wells) and Davis. But they are still there and still viable as alternatives in a sustained drought emergency.

    Groundwater is very well studied locally because we have a land-grant college here. Conjunctive use of the shallower groundwater and surface water has been considered to be in reasonable balance locally. Some farmers use wells, some irrigate with water from Indian Valley Reservoir. Those using surface water help to recharge the wells for those who are pumping. And some farmers can go back and forth, as needed. Davis and Woodland moving to surface water for the majority of our water reduced pressure on the shallower groundwater supplies.

    There are areas where housing growth is a threat to water supply. It isn’t likely to be an issue here. Davis is somewhat uniquely situated with having alternate and even a backup source of water.

    I’m certainly open to updated information on this topic.

    1. Ron Oertel

      There are areas where housing growth is a threat to water supply. It isn’t likely to be an issue here.

      Thanks, but (now) wondering why Davis would be under any form of water restriction for existing households and businesses.  From your post, it sounds like the city can pump all the water it wants to, without any impact to anyone or anything.

      Though the exact mechanism of recharge is not fully understood, the water is known to be older than WWII because it does not test positive for the Radium isotope that is found in water that passed through surface soil after atomic bombs were tested aboveground in the 1950s and 60s.  It may be lateral recharge from very broad aquifers of water that may even be prehistoric. But monitoring indicates that we are not over-pumping this source, particularly since it is the city’s backup and contributes only 10 – 30% of our water most years. UCD also uses this water.

      If it’s “prehistoric”, then (by definition) it’s not being recharged.

      1. Don Shor

        Thanks, but (now) wondering why Davis would be under any form of water restriction for existing households and businesses.

        It’s a state policy.

        In October 2021, the City Council reinforced the Governor’s call for a voluntary 15% reduction in water usage and adopted sprinkler irrigation watering restrictions as a preventive measure to assist the City in reducing water usage and to help meet the state-wide call for voluntary reductions. The watering restrictions only apply to sprinkler/spray irrigation and do not apply to other methods of irrigation such as drip systems and hand-watering.

        Alongside the City’s permanent mandatory water-use restrictions, there are now additional state water waste prohibitions (for the duration of the state-declared drought emergency).

        https://www.cityofdavis.org/city-hall/public-works-utilities-and-operations/water/water-conservation

        From your post, it sounds like the city can pump all the water it wants to, without any impact to anyone or anything.

        I, of course, did not say that or anything like that.

        1. Ron Oertel

          Don:  “I, of course, did not say that or anything like that.”

          This is very much like that:

          Don:  “There are areas where housing growth is a threat to water supply. It isn’t likely to be an issue here.”

          If there’s a limited supply, then by definition adding more demand will reduce the amount available to others. There’s no way around that.

          As I recall, this was one of the issues regarding the new development in Folsom, as well. Essentially requiring existing residents and businesses to “conserve for more development”.

          I also recall that this impact was purposefully downplayed. Sort of an attempt to “muddy” the reality, so to speak. Though pretty soon, there won’t be enough water to create mud. 🙂

          1. Don Shor

            As I recall, this was one of the issues regarding the new development in Folsom, as well.

            Correct. Folsom, as far as I know, only has surface water available, from Folsom Reservoir. Their “plan” was to provide water for new development through conservation of existing water supply.

  4. Ron Oertel

    Just happened across this article, and decided to post it using my best (text) impersonation of Professor Farnworth’s (Futurama) catch-phrase, “Good News, Everyone”:

    The Los Angeles Superior Court petition was brought Tuesday against Attorney General Rob Bonta by the cities of Redondo Beach, Torrance, Carson and Whittier, whose leaders want a court order finding the law in violation of the state constitution along with a prohibition on its enforcement.
    ——————————————————————————
    Prior to signing the bill, Newsom was presented with a letter signed by about 240 cities and the League of California Cities, all urging him to veto the bill.

    https://www.msn.com/en-us/news/us/4-cities-sue-to-stop-new-california-law-permitting-more-homes-in-single-family-neighborhoods/ar-AAVIPOU?li=BBnbfcL

    Also, was Davis one of the 240 cities opposed to SB 9? And if not, why not? (Unfortunately, I think I already know the answer to both of those questions.)

    1. Bill Marshall

      If you say (as you did),

      I think I already know the answer to both of those questions.

      why ask?… I think I already know why, and don’t need to ask a question…

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