Sunday Commentary: Legal Services Letter a Critical Indicator for Where Davis Housing Goes This RHNA Cycle

By David M. Greenwald
Executive Editor

Davis, CA – The series of letters that have come out of Legal Services of Northern California bear further scrutiny by both the city and the community.

As the city notes in the staff report this week, “after accounting for expected units (434 units) from planned and approved projects, vacant and underutilized sites, and accessory dwelling units, there would still be a shortfall of 496 lower-income units necessary to accommodate the City’s total Lower-Income RHNA (930 units).”

Per State law, “the City must rezone land that allows at least 30 units per acre with a minimum density of 20 units per acre. Additionally, the rezoned sites must allow projects with at least 20 percent affordable housing to be approved through a by-right process, and at least 50 percent of the Lower-Income RHNA shortfall must be accommodated on parcels designated exclusively for residential uses.”

Moreover, “To ensure that sites are a suitable size for development of lower income units, state criteria generally requires that the sites are between half an acre and 10 acres in size.”

The city believes the identified sites are consistent with the legal criteria.

In the most recent letter from Legal Services, they express concerns that Version 3 “does not affirmatively further fair housing” as they believe it would overconcentrate multi-family affordable housing in the southeast section of the city.

Here I agree with the city.  While it true that the city has a number of affordable housing complexes in this portion of the city—New Harmony Mutual Housing Community, Owendale Community, Alhambra at Mace Ranch, among others—other than New Harmony and Owendale which are right next to each other, they are spaced out a good distance apart.

Where I think Legal Services is on stronger ground is that the city has identified a number of sites that are small and, as they point out, “These sites are unlikely to attract affordable housing developers who need larger parcels to secure affordable housing financing.”

While acknowledging the concern of Legal Services, the city responded, “State law restricts the identification of sites that are smaller than half an acre to accommodate a jurisdiction’s Lower Income RHNA. The smallest site identified in the City’s sites inventory is one acre. In addition, of the 13 total sites in the inventory to address the City’s lower income RHNA shortfall, half of them (7 sites) exceed 2 acres.”

The city also believes that the “reference to a capacity of ’41 units or less’ is somewhat misleading.”

Instead, the city notes that “the estimated number of lower income units identified in the City’s site inventory is a conservative estimate of the potential development capacity for a site.”

Instead, the city argues, “The actual capacity of the sites included in the sites inventory fits well within the number of units that would make these sites feasible for affordable housing financing.”

In short, the city argues that “all of the proposed rezone sites meet the statutory criteria and HCD guidance, including the size criteria. The City has not relied on any sites smaller than an acre (let alone ½ acre) and has identified sites with a realistic capacity for development, estimating that capacity in a conservative manner.”

While I agree that the city probably meets the technical criteria for rezoning land, I think there is a significant question as to whether these kind of small infill sites will generate the overall volume of affordable housing necessary to meet the city’s affordable housing needs.

It feels like they drew up a bunch of dots on a map and calculated their housing needs.  Viability is a real question at this point in time.

The suggestions made by Legal Services are also illustrative of where this is probably going.

One suggestion they make is that the city could require “all new ADUs to be deed restricted as affordable rentals for a minimum of 15 years.”

The city was not inclined to require affordable deed restrictions for ADUs—arguing that “staff does not believe that it would be practical or legally viable.”

The City, staff adds that it “strongly supports the construction of ADUs. They play an important role in diversifying the City’s housing stock and can provide ‘naturally occurring’ affordability, as discussed in the revised Housing Element Version 3.”

However, staff argues “the City simply does not have the legal authority to mandate that new ADUs be deed restricted as affordable housing.”

While true, this gets to the heart of the complaint about ADUs as affordable housing units—namely that there is no deed restriction or guarantee such units will remain affordable.

The second suggestion is perhaps even more telling.

They argue that “the City could commit to initiating a rezone or annexation that will increase affordable housing sites in the Northern and Western areas of the City or the City’s sphere of influence.”

In their letter from August, Legal Services argued that the Housing Element “should analyze the impact of the units lost through elections, especially given that of the 6 developments seeking voter approval, 4 were unsuccessful. Given that the City has five peripheral development proposals in various stages of review that would bring around 4,700 new housing units to the City if all were to be approved by the voters, the City must consider the constraint of Measure J/R/D.”

They add, “Housing Element Version 2 states that it is speculative that Measure J/R/D will limit housing supply or affordability even though it will add cost and time to the development review process. However, the City should be providing evidence and analysis to support this conclusion. The City Council’s recent decision to not put any of the five peripheral development proposals on the ballot for November 2024 proves that Measure J/R/D does limit housing supply because it adds time to the development review process.”

The city has acknowledged recently that there will have to be peripheral housing and it has tentatively committed to some sort of Measure J amendment possibly by November 2024.

However, in response to Legal Services they continue to push that debate off into the future, noting that while the city is currently processing planning applications for a number of peripheral developments, none of them are included in the City’s site inventory.

“While the City is not counting any of these potential peripheral proposals toward its current RHNA cycle for planning purposes (largely because of statutory criteria and HCD guidance), the City is processing these applications expeditiously,” staff writes.

Staff added, “The City considers both infill and peripheral opportunities for new housing development to be important, even if the Housing Element rezone sites do not include the peripheral sites as identified capacity toward the Lower Income RHNA.”

Is Legal Services gearing up to challenge Measure J?  This seems to set up the argument that the very presence of Measure J is precluding any consideration of peripheral sites, which is a barrier to the city getting the required number of low- and very low-income sites this cycle.

We will see where this goes.

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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  1. Walter Shwe

    Measure J must be struck down by righteous and courageous warriors so that Davis is no longer subject to what amounts to NIMBY socialism.

    It’s another sad NIMBY joke when they are forced to change their definition of so-called sprawl to stop all new development in this City.

    ” to spread or develop irregularly or without restraint”

    1. Keith Olsen

      It’s another sad NIMBY joke when they are forced to change their definition of so-called sprawl to stop all new development in this City.

      ” to spread or develop irregularly or without restraint”

      Take it up with Merriam:

      1 of 2


      sprawled; sprawling; sprawls

      Synonyms of sprawl

      intransitive verb


      : to lie or sit with arms and legs spread out


      to spread or develop irregularly or without restraint
      bushes sprawling along the road

      sprawling suburbs

      a sprawling narrative


      : to creep or clamber awkwardly

      archaic : to lie thrashing or tossing about


        1. Keith Olsen

          Straight from the horse’s mouth:David Greenwald Post authorJuly 8, 2023 at 7:14 am
          You like to re-open peripheral debates (pun intended)…
          The problem with the definition you provided is that it is overly broad and eliminates the essential eliments of what makes sprawl problematic…
          Dictionary definition: “the uncontrolled expansion of urban areas.
          Britannica: ” the rapid expansion of the geographic extent of cities and towns, often characterized by low-density residential housing, single-use zoning, and increased reliance on the private automobile for transportation.”
          The advantage of these definitions is that they are more specific and point to the problems of sprawl rather than create a blanket definition that basically means sprawl is peripheral development which actually in effect eliminates it as a pejorative.
          You are in effect by using the definition you are attempting to have a non-pejorative definition for a word with a pejorative context. I know you’ve taken it (selectively) from somewhere else, but there is a dishonest eliment to that.

          As Ron Oertel stated, David it appears that you are also trying to shape the word “sprawl” to suit your agenda:

          Ron Oertel July 8, 2023 at 7:56 am

          You didn’t have anything to “add” in the first place.
          Again, it seems that I’ve “touched a nerve” for you and Richard. Desperately trying to shape a word in advance of the large, sprawling proposals that will be presented to voters.

          1. David Greenwald

            As I said: “The problem with the definition you provided is that it is overly broad and eliminates the essential eliments of what makes sprawl problematic…”

      1. Walter Shwe

        develop irregularly

        No, I won’t take this matter up with Merriam because Keith posted it, not the dictionary company. Using this part of the definition, even 1/4 of a block of new development would be stopped. That’s the opposite of the misleading and false premise of new development ‘sprawl’.

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