June 11, 2023
Dear Housing Element Advisory Board,
The LGCA thanks each member of the HEAB for your assistance in advising the Town Council as the Town continues to draft a compliant 2024 Housing Element. We look forward to the day HCD certifies the draft Housing Element and the Town can move forward in developing the housing required by the 6th cycle RHNA.
There is considerable work ahead of us. Unfortunately, the process has not been smooth, resulting in the Town missing two important statutory deadlines, the most important being January 31, 2023, which was the statutory deadline for adopting a compliant housing element.
We are writing to you today to ensure the HEAB is fully informed and to provide specific recommendations for your consideration as you formulate HEAB’s recommendations to the Town Council.
Background
The Staff report contains a background section which details actions taken beginning with January 12, 2023.
On January 30, 2023, the Town Council adopted the 2024 Housing Element in accordance with Govt Code Section 65585 subd (f)(2) which allows the Town to adopt a Housing Element that HCD has found substantially incompliant without changes by including written findings explaining why the jurisdiction believes that the draft substantially complies. The resolution stated “the Housing Element substantially complies with Housing Element Law, as provided in Govt Code Sect 65580 et seq.”
While the resolution adopting the Element contained findings, there was no documentation included which specifically addressed the HCD January 12, 2023 comment letter which included 7 pages of specific changes that were determined to be “necessary to bring the Town’s housing element into compliance”.
Simply claiming the Town Council has “considered the findings made by HCD” and “determined the draft Housing Element substantially complies with the requirements of State Housing Element Law” is not enough. There must be substantial evidence in the record to substantiate these findings. No such evidence was provided.
We have also attached a HCD memo dated March 16, 2023 (Attachment 1) which provides clarification of the requirements for housing element compliance. Specifically, HCD has stated that a “jurisdiction does not have the authority to determine that an adopted element is in substantial compliance but may provide reasoning why HCD should make a finding of substantial compliance.” Additionally, the memo specifically states a “jurisdiction is in compliance as of the date HCD’s letter finding the adopted element in substantial compliance.” As of today, the Town has not received a letter from HCD finding the adopted element is complying. We do not believe that the HEAB has ever been alerted to the HCD memo of March 16, 2023.
On April 14, 2023, the Town received a second comment letter from HCD which specifically stated that the findings pursuant to Govt Code Section 65585 (f)(2) were “inadequate to demonstrate compliance with statutory requirements, and revisions to the element continue to be necessary to comply with State Housing Element Law”. The letter went on to state “the Town’s findings only appear to make an attempt at meeting statutory requirements “. These are extraordinarily strong words and the HEAB should take this very seriously.
Given this, the HEAB should reasonably conclude that the adopted Housing Element does not comply with State Law and as such the Town is out of compliance with the Housing Accountability Act since the Town failed to adopt a compliant Element by January 31, 2023.
On May 30, 2023, the Town received a third comment letter from HCD (Attachment 2) which again concluded “revisions will be necessary to substantially comply with State Housing Element Law”. The letter contains 7 pages of comments which specifically discuss changes that are necessary to bring the Town’s housing element into compliance. In comparing the January 12, 2023, and May 30, 2023 letters, it appears only modest progress has been made in satisfactorily addressing HCD’s numerous comments.
The May 30 letter also included a specific warning that the any rezoning required to make prior identified sites available, SHALL be completed no later than one year from the statutory deadline of January 31, 2023. This means that by January 31, 2024, the Town must adopt a compliant housing element and complete all required rezoning, or the housing element cannot be found in substantial compliance. Given the Town has already missed the January 31, 2023, and May 31, 2023, statutory deadlines, and the numerous comments outstanding, we are genuinely concerned about the Town’s ability to meet the January 31, 2024 deadline.
SB 330 Applications
As a result of the Town not being compliant with HAA, the Town received on June 7, 2023, an SB 330 preliminary application (Attachment 3) pursuant to the “builder’s remedy” to develop mixed use housing at 101 South Santa Cruz Avenue. The application states that “because the City (sic) has yet to adopt a 6th cycle Housing Element that is substantially compliant with State Law, this project is a “builder’s remedy” project”. The project consists of 72 condominium units in one 5 story building (71 feet high) on approximately .82 acre and would replace the US Post Office building that was constructed in 1967. We have attached the application cover letter for your review.
In addition, the Town received on April 17, 2023, a SB 330 preliminary application for the development of Phase II of the North Forty parcels controlled by Grosvenor. While not explicitly mentioning the “builders remedy”, for all practical purposes the SB 330 application vests the Town’s noncompliance status. Additionally, the application requested several concessions and waivers and intends to use the State Density Bonus Law to develop 437 units of which 88 units will be designated for Low Income. The number of Low-Income units is materially less than the 299 Low Income Units allocated to these parcels in the Housing Element’s site inventory.
Given the noncompliance status, it is highly probable that additional SB 330 preliminary applications will be filed with the Town for development of additional parcels.
It is with this information that we respectfully offer the following recommendations.
Recommendations
1. The Town should immediately publish a detailed timeline showing all required steps to file and obtain HCD approval of a compliant Housing Element including public comment time; the time to comply with CEQA requirements; and the time required to rezone the parcels identified in the Housing Element. The goal is to evaluate the viability of meeting the January 31, 2024, deadline. We made this same recommendation late last year.
2. The HEAB should request EMC Planning Group to provide written monthly progress reports to the HEAB which will track progress against the timeline above and work completed. This is a contractual obligation which has not been adhered to.
3. The HEAB should immediately review the Housing Element site inventory and revise the number of units planned for the North 40 to reflect the SB 330 application. As a result of the decrease in Low Income units, additional parcels may need to be added to the site inventory to meet the RHNA requirements by income category.
4. Additionally, the HEAB should review all nonvacant sites listed in the site inventory and validate the units by income category will reasonably be redeveloped within the planning period. It is not clear to us how certain sites assume 40% or more of the total units developed will be for low-income categories when the Town’s BMP program requires only 20%. There is no data in the Housing Element which would reasonably support this assumption. To the extent that the number of low-income units is reduced, additional sites may need to be added to the site inventory.
5. The HEAB should commit to hold monthly meetings to monitor progress and provide community input. The HCD has repeatedly stressed the importance of public participation in the development of the Housing Element. Holding regularly scheduled HEAB meetings is an essential element of an effective public participation program. Unfortunately, of the 11 HEAB meetings scheduled between January 1 and June 1, 2023, only 2 meetings were held. It is difficult to understand how the HEAB can properly discharge its duties to advise the Council if it is not meeting and actively tracking progress.
Thank you for taking our recommendations under advisement. Note there are 3 attachments in one pdf document.
Los Gatos Community Alliance
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