By David M. Greenwald
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.”